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Full text of "National Child Protection Act of 1993 : hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, on H.R. 1237 ... July 16, 1993"

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NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CIVIL  AND  CONSTITUTIONAL  RIGHTS 

OF  THE 

COMMITTEE  ON  THE  JUDICIAKY 
HOUSE  OF  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 
ON 

H.R.  1237 

NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


JULY  16,  1993 


Serial  No.  50 


Printed  for  the  use  of  the  Co 


u>%Vt) 


BOSTON  PUBLIC  LIBRARY 

GOVERNMENT  DOCUMENTS  DEPARTMENT 
milium;  uu  llm  Judicial  >> 


80-609  cc 


U.S.  GOVERNMENT  PRINTING  OFFICE 
WASHINGTON  :  1994 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents.  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN  0-16-046185-5 


Y  H  .2  Si  I  \   .  toi/i° 
NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CIVIL  AND  CONSTITUTIONAL  RIGHTS 

OF  THE 

COMMITTEE  ON  THE  JUDICIAKY 
HOUSE  OF  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 
ON 

H.R  1237 

NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


JULY  16,  1993 


Serial  No.  50 


Printed  for  the  use  of  the  Coi 


oV  w  W 


BOSfOd  PUBLIC  LIBRARY 

GOVERNMENT  DOCUMENTS  DEPARTMENT 

niiilttt'u  uii  l\w  Judiuaiji 


U.S.  GOVERNMENT  PRINTING  OFFICE 
80-609  CC  WASHINGTON   :  1994 

For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN  0-16-046185-5 


COMMITTEE  ON  THE  JUDICIARY 


JACK  BROOKS 


DON  EDWARDS,  California 
JOHN  CONYERS,  JR.,  Michigan 
ROMANO  L.  MAZZOLI,  Kentucky 
WILLIAM  J.  HUGHES,  New  Jersey 
MIKE  SYNAR,  Oklahoma 
PATRICIA  SCHROEDER,  Colorado 
DAN  GLICKMAN,  Kansas 
BARNEY  FRANK,  Massachusetts 
CHARLES  E.  SCHUMER,  New  York 
HOWARD  L.  BERMAN,  California 
RICK  BOUCHER,  Virginia 
JOHN  BRYANT,  Texas 
GEORGE  E.  SANGMEISTER,  Illinois 
CRAIG  A.  WASHINGTON,  Texas 
JACK  REED,  Rhode  Island 
JERROLD  NADLER,  New  York 
ROBERT  C.  SCOTT,  Virginia 
DAVID  MANN,  Ohio 
MELVIN  L.  WATT,  North  Carolina 
XAVIER  BECERRA,  California 


Texas,  Chairman 

HAMILTON  FISH,  JR.,  New  York 
CARLOS  J.  MOORHEAD,  California 
HENRY  J.  HYDE,  Illinois 
F.  JAMES  SENSENBRENNER,  JR., 

Wisconsin 
BILL  MCCOLLUM,  Florida 
GEORGE  W.  GEKAS,  Pennsylvania 
HOWARD  COBLE,  North  Carolina 
LAMAR  S.  SMITH,  Texas 
STEVEN  SCHIFF,  New  Mexico 
JIM  RAMSTAD,  Minnesota 
ELTON  GALLEGLY,  California 
CHARLES  T.  CANADY,  Florida 
BOB  INGLIS,  South  Carolina 
BOB  GOODLATTE,  Virginia 


JONATHAN  R.  YaROWSKY,  General  Counsel 
ALAN  F.  COFFEY,  Jr.,  Minority  Chief  Counsel 


Subcommittee  on  Civil  and  Constitutional  Rights 

DON  EDWARDS,  California,  Chairman 
PATRICIA  SCHROEDER,  Colorado  HENRY  J.  HYDE,  Illinois 

BARNEY  FRANK,  Massachusetts  HOWARD  COBLE,  North  Carolina 

CRAIG  A.  WASHINGTON,  Texas  CHARLES  T.  CANADY,  Florida 

JERROLD  NADLER,  New  York 

Catherine  LeRoy,  Counsel 

Ivy  Davis- FOX,  Assistant  Counsel 

JAMES  X.  DEMPSEY,  Assistant  Counsel 

Virginia  Sloan,  Assistant  Counsel 

MELODY  BARNES,  Assistant  Counsel 

KATHRYN  A.  HAZEEM,  Minority  Counsel 


(ID 


CONTENTS 


HEARING  DATE 


July  16,  1993  1 

TEXT  OF  BILL 
H.R.  1237  3 

OPENING  STATEMENT 

Edwards,  Hon.  Don,  a  Representative  in  Congress  from  the  State  of  Califor- 
nia, and  chairman,  Subcommittee  on  Civil  and  Constitutional  Rights  1 

WITNESSES 

Handley,  Col.  Thomas  A.,  legal  counsel,  Civil  Air  Patrol 66 

Miles-LaGrange,  Vicki,  senator,  Oklahoma  State  Legislature,  and  chair,  Okla- 
homa Senate  Judiciary  Committee,  on  behalf  of  the  National  Conference 

of  State  Legislatures  29 

Nemecek,  David  F.  Inspector,  Deputy  Assistant  Director,  Policy  and  Liaison 

Branch,  Criminal  Justice  Information  Services  Division,  FBI  21 

Potts,  Lawrence  F.,  director  of  Administration,  Boy  Scouts  of  America  54 

Swann,  Lynn  C,  president  of  the  board,  Big  Brothers/Big  Sisters  of  America  ..        48 
Williams,  Renova,  director  of  personnel,  Civil  Air  Patrol,  Maxwell  Air  Force 

Base,  Montgomery,  AL  70 

LETTERS,  STATEMENTS,  ETC.,  SUBMITTED  FOR  THE  HEARING 

Handley,  Col.  Thomas  A.,  legal  counsel,  Civil  Air  Patrol:  Prepared  statement  .       67 

Miles-LaGrange,  senator,  Oklahoma  State  Legislature,  and  chair,  Oklahoma 
Senate  Judiciary  Committee,  on  behalf  of  the  National  Conference  of  State 

Legislatures:  

Prepared  statement  38 

State  criminal  history  background  check  laws  (through  December  31, 

1992) 31 

Nemecek,  David  F.,  Inspector,  Deputy  Assistant  Director,  Policy  and  Liaison 

Branch,  Criminal  Justice  Information  Services  Division,  FBI  24 

Potts,  Lawrence  F.,  director  of  administration,  Boy  Scouts  of  America:  Pre- 
pared statement  56 

Schroeder,  Hon.  Patricia,  a  Representative  in  Congress  from  the  State  of 

Colorado:  Prepared  statement:  30 

Swann,  Lynn  C,  president  of  the  board,  Big  Brothers/Big  Sisters  of  America: 

Prepared  statement 50 

APPENDIX 
Material  submitted  for  the  hearing 75 


(III) 


NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


FRIDAY,  JULY  16,  1993 

House  of  Representatives, 
Subcommittee  on  Civil  and  Constitutional  Rights, 

Committee  on  the  Judiciary, 

Washington,  DC. 
The  subcommittee  met,  pursuant  to  notice,  at  10  a.m.,  in  room 
2237,  Rayburn  House  Office  Building,  Hon.  Don  Edwards  (chair- 
man of  the  subcommittee)  presiding. 

Present:  Representatives  Don  Edwards,  Patricia  Schroeder,  and 
Charles  T.  Canady. 

Also  present:  James  X.  Dempsey,  assistant  counsel;  Jancelyn 
Pegues,  secretary;  and  Kathryn  A.  Hazeem,  minority  counsel. 

OPENING  STATEMENT  OF  CHAIRMAN  EDWARDS 

Mr.  Edwards.  The  subcommittee  will  come  to  order. 

The  purpose  of  this  subcommittee  meeting  today  is  to  examine 
H.R.  1237,  a  bill  to  establish  procedures  for  national  criminal  back- 
ground checks  for  child  care  providers.  We  have  invited  a  number 
of  expert  witnesses  and  we  are  looking  forward  to  hearing  from 
them. 

We  are  indebted  to  our  colleague  from  Colorado,  Mrs.  Schroeder 
for  being  the  original  author  of  tnis  legislation.  Mrs.  Schroeder  has 
long  been  one  of  the  Nation's  strongest  advocates  for  the  welfare 
of  children  and  we  are  very  grateful  for  the  leadership  that  she  has 
offered  on  this  bill. 

The  bill  before  us  strives  for  a  balance,  since  the  use  of  criminal 
history  records  for  employment  screening  purposes  raises  impor- 
tant issues  of  fairness  and  due  process. 

The  FBI's  criminal  history  records  files  have  over  24  million  indi- 
vidual names  and  records,  and  that  is  a  significant  portion,  of 
course,  of  the  work  force.  These  records  are  far  from  perfect.  The 
most  serious  problem  is  that  as  many  as  40  to  60  percent  of  the 
records  don't  have  dispositions,  and  dispositions  are  really  essential 
for  an  accurate  criminal  record  because  you  don't  know  if  the  per- 
son was  found  innocent  or  guilty. 

Someday  I  trust  that  we  will  resolve  that  very  serious  problem. 
Meanwhile,  we  must  consider  whether  the  FBI  should  provide  to 
employers  and  licensing  authorities  naked  arrest  records  when  that 
person  might  have  been  innocent?  That  always  has  been  of  concern 
to  the  subcommittee. 

As  a  matter  of  fact,  we  used  to  have  a  1-year  rule  with  the  FBI: 
if  after  a  year,  if  there  was  not  a  disposition,  the  record  could  not 
be  distributed.  We  will  ask  about  Mr.  Nemecek  about  that. 

(1) 


A  second  area  of  concern  involves  the  impact  of  arrest  record 
checks  on  the  poor  and  on  minorities  who  are  disproportionately 
subject  to  arrests.  Should  a  person  be  denied  employment  through- 
out his  life  based  on  an  arrest  many,  many  years  ago?  That  is  an- 
other issue  that  we  should  be  discussing. 

A  third  problem  is  the  delay  involved  in  getting  a  response  from 
the  FBI.  The  FBI,  in  many  cases,  still  uses  the  mail,  and  some- 
times getting  a  record  takes  2  months  or  more. 

With  all  these  issues  in  mind,  we  are  looking  forward  to  all  the 
witnesses  who  are  going  to  help  us  write  this  bill  again.  It  passed 
the  House  last  year,  it  was  in  the  crime  bill  that  passed  the  Senate 
but  the  conference  report  was  unfortunately  filibustered  to  death  in 
the  other  body. 

This  year,  we  hope  to  have  it  in  the  crime  bill  but  if  we  don't, 
we  are  going  to  do  it  freestanding. 

[The  bill,  H.R.  1237,  follows:] 


103d  CONGRESS 
1st  Session 


H.R.  1237 


To  establish  procedures  for  national  criminal  background  checks  for  child 

care  providers. 


IN  THE  HOUSE  OF  REPRESENTATIVES 

March  4,  1993 
Mrs.  Schroeder  (for  herself,  Mr.  Edwards  of  California,  Mr.  Cramer,  Mr. 
Kopetski,  Mr.  Ramstad,  Mr.  Shays,  and  Mr.  Smith  of  Oregon)  intro- 
duced the  following  bill;  which  was  referred  to  the  Committee  on  the 
Judiciary 


A  BILL 

To  establish  procedures  for  national  criminal  background 
checks  for  child  care  providers. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  SECTION  1.  SHORT  TITLE. 

4  This  Act  may  be  cited  as  the  "National  Child  Protec- 

5  tion  Act  of  1993". 

6  SEC.  2.  REPORTING  BY  THE  STATES. 

7  (a)   In  General. — An  authorized  criminal  justice 

8  agency  of  a  State  shall  report  child  abuse  crime  informa- 


2 

1  tion  to,  or  index  child  abuse  crime  information  in,  the  na- 

2  tional  criminal  background  check  system. 

3  (b)   Provision  of  State   Child  Abuse  Crime 

4  Records  through  the  National  Criminal  Back- 

5  ground  Check  System.— (1)  Not  later  than  180  days 

6  after  the  date  of  enactment  of  this  Act,  the  Attorney  Gen- 

7  eral  shall — 

8  (A)   investigate   the   criminal   records   of  each 

9  State  and  determine  for  each  State  a  timetable  by 

10  which   the   State   should  be   able   to   provide   child 

11  abuse  crime   records  on  an  on-line  capacity  basis 

12  through  the  national  criminal  background  check  sys- 

13  tern; 

14  (B)  establish  guidelines  for  the  reporting  or  in- 

15  dexing  of  child  abuse  crime  information,  including 

16  guidelines  relating  to  the  format,  content,  and  accu- 

17  racy  of  child  abuse  crime  information  and  other  pro- 

18  cedures  for  carrying  out  this  Act;  and 

19  (C)    notify  each   State   of  the   determinations 

20  made  pursuant  to  subparagraphs  (A)  and  (B). 

21  (2)  The  Attorney  General  shall  require  as  a  part  of 

22  the  State  timetable  that  the  State — 

23  (A)  by  not  later  than  the  date  that  is  3  years 

24  after  the  date  of  enactment  of  this  Act,  have  in  a 

25  computerized  criminal  history  file  at  least  80  percent 


•HR  1237  IH 


3 

1  of  the  final  dispositions  that  have  been  rendered  in 

2  all    identifiable   child   abuse   crime   cases   in   which 

3  there  has  been  an  event  of  activity  within  the  last 

4  5  years; 

5  (B)  continue  to  maintain  at  least  an  80  percent 

6  reporting  rate  of  final  case  dispositions  in  all  identi- 

7  fiable  child  abuse  crime  cases  in  which  there  has 

8  been  an  event  of  activity  within  the  preceding  5 

9  years;  and 

10  (C)  take  steps  to  achieve  full  disposition  report- 

11  ing,  including  data  quality  audits  and  periodic  no- 

12  tices  to  criminal  justice  agencies  identifying  records 

13  that  lack  final  dispositions  and  requesting  those  dis- 

14  positions. 

15  (c)  Liaison. — An  authorized  agency  of  a  State  shall 

16  maintain  close  liaison  with  the  National  Center  on  Child 

17  Abuse  and  Neglect,  the  National  Center  for  Missing  and 

18  Exploited  Children,  and  the  National  Center  for  the  Pros- 

19  ecution  of  Child  Abuse  for  the  exchange  of  technical  as- 

20  sistance  in  cases  of  child  abuse. 

21  (d)  Annual  Summary. — (1)  The  Attorney  General 

22  shall  publish  an  annual  statistical  summary  of  the  child 

23  abuse  crime  information  reported  under  this  Act. 

24  (2)    The   annual   statistical   summary  described   in 

25  paragraph  (1)  shall  not  contain  any  information  that  may 

•HR  1237  IH 


6 


4 

1  reveal  the  identity  of  any  particular  victim  or  alleged  viola- 

2  tor. 

3  (e)  Annual  Report. — The  Attorney  General  shall 

4  publish  an  annual  summary  of  each  State's  progress  in 

5  reporting  child  abuse  crime  information  to  the  national 

6  criminal  background  check  system. 

7  (f)  Study  op  Child  Abuse  Offenders. — (1)  Not 

8  later  than  180  days  after  the  date  of  enactment  of  this 

9  Act,  the  Administrator  of  the  Office  of  Juvenile  Justice 

10  and  Delinquency  Prevention  shall  begin  a  study  based  on 

11  a  statistically  significant  sample  of  convicted  child  abuse 

12  offenders  and  other  relevant  information  to  determine — 

13  (A)  the  percentage  of  convicted  child  abuse  of- 

14  fenders  who  have  more  than  1  conviction  for  an  of- 

15  fense  involving  child  abuse; 

16  (B)  the  percentage  of  convicted  child  abuse  of- 

17  fenders  who  have  been  convicted  of  an  offense  in- 

18  volving  child  abuse  in  more  than  1  State; 

19  (C)   whether   there   are   crimes   or   classes   of 

20  crimes,  in  addition  to  those  defined  as  background 

21  check  crimes  in  section  5,  that  are  indicative  of  a 

22  potential  to  abuse  children;  and 

23  (D)   the  extent  to  which  and  the  manner  in 

24  which  instances  of  child  abuse  form  a  basis  for  con- 

25  victions  for  crimes  other  than  child  abuse  crimes. 

•HR  1237  IH 


5 

1  (2)  Not  later  than  1  year  after  the  date  of  enactment 

2  of  this  Act,  the  Administrator  shall  submit  a  report  to  the 

3  Chairman  of  the  Committee  on  the  Judiciary  of  the  Senate 

4  and  the  Chairman  of  the  Committee  on  the  Judiciary  of 

5  the  House  of  Representatives  containing  a  description  of 

6  and  a  summary  of  the  results  of  the  study  conducted  pur- 

7  suant  to  paragraph  (1). 

8  SEC.  3.  BACKGROUND  CHECKS. 

9  (a)  In  General. — (1)  A  State  may  have  in  effect 

10  procedures  (established  by  or  under  State  statute  or  regu- 

11  lation)  to  permit  a  qualified  entity  to  contact  an  author- 

12  ized  agency  of  the  State  to  request  a  nationwide  back- 

13  ground  check  for  the  purpose  of  determining  whether 

14  there  is  a  report  that  a  provider  has  been  convicted  of 

15  a  background  check  crime. 

16  (2)  The  authorized  agency  shall  access  and  review 

17  State  and  Federal  records  of  background  check  crimes 

18  through  the  national  criminal  background  check  system 

19  and  shall  respond  promptly  to  the  inquiry. 

20  (b)  Guidelines. — (1)  The  Attorney  General  shall  es- 

21  tablish  guidelines  for  State  background  check  procedures 

22  established  under  subsection  (a),  which  guidelines  shall  in- 

23  elude  the  requirements  and  protections  of  this  Act. 

24  (2)  The  guidelines  established  under  paragraph  (1) 

25  shall  require — 


•HR  1237  IH 


8 

6 

1  (A)  that  no  qualified  entity  may  request  a  back- 

2  ground  check  of  a  provider  under  subsection  (a)  un- 

3  less  the  provider  first  provides  a  set  of  fingerprints 

4  and  completes  and  signs  a  statement  that — 

5  (i)  contains  the  name,  address,  and  date  of 

6  birth  appearing  on  a  valid  identification  docu- 

7  ment  (as  defined  by  section  1028(d)(1)  of  title 

8  18,  United  States  Code)  of  the  provider; 

9  (ii)  the  provider  has  not  been  convicted  of 

10  a  background  check  crime  and,  if  the  provider 

11  has    been    convicted    of   a    background    check 

12  crime,  contains  a  description  of  the  crime  and 

13  the  particulars  of  the  conviction; 

14  (iii)   notifies  the  provider  that  the  entity 

15  may  request  a  background  check  under  sub- 

16  section  (a); 

17  (iv)  notifies  the  provider  of  the  provider's 

18  rights  under  subparagraph  (B);  and 

19  (v)  notifies  the  provider  that  prior  to  the 

20  receipt  of  the  results  of  the  background  check 

21  the  qualified  entity  may  choose  to  deny  the  pro- 

22  vider  unsupervised  access  to  a  child  to  whom 

23  the  qualified  entity  provides  child  care; 


•HR  1237  m 


7 

1  (B)  that  each  State  establish  procedures  under 

2  which  a  provider  who  is  the  subject  of  a  background 

3  check  under  subsection  (a)  is  entitled — 

4  (i)   to  obtain  a  copy  of  any  background 

5  check  report  and  any  record  that  forms  the 

6  basis  for  any  such  report;  and 

7  (ii)   to  challenge  the   accuracy  and  com- 

8  pleteness  of  any  information  contained  in  any 

9  such  report  or  record  and  obtain  a  prompt  de- 

10  termination  from  an  authorized  agency  as  to 

1 1  the  validity  of  such  challenge; 

12  (C)  that  an  authorized  agency  to  which  a  quali- 

13  fied   entity  has   provided   notice   pursuant  to   sub- 

14  section  (a)  make  reasonable  efforts  to  complete  re- 

15  search  in  whatever  State  and  local  recordkeeping 

16  systems  are  available  and  in  the  national  criminal 

17  background  check  system  and  respond  to  the  quali- 

18  fied  entity  within  15  business  days; 

19  (D)  that  the  response  of  an  authorized  agency 

20  to  an  inquiry  pursuant  to  subsection  (a)  inform  the 

21  qualified  entity  that  the  background  check  pursuant 

22  to  this  section — 

23  (i)   may  not  reflect  all  convictions  for  a 

24  background  check  crime;  and 


•HR  1237  EH 


10 


8 

1  (ii)  may  not  be  the  sole  basis  for  determin- 

2  ing  the  fitness  of  a  provider; 

3  (E)  that  the  response  of  an  authorized  agency 

4  to  an  inquiry  pursuant  to  subsection  (a)  be  limited 

5  to  the  conviction  information  reasonably  required  to 

6  accomplish  the  purposes  of  this  Act; 

7  (F)  that  the  qualified  entity  may  choose  to  deny 

8  the  provider  unsupervised  access  to  a  child  to  whom 

9  the  qualified  entity  provides  child  care  on  the  basis 

10  of  conviction  information  provided  pursuant  to  a 

1 1  background  check  under  subsection  (a)  until  the  pro- 

12  vider  has  obtained  a  determination  as  to  the  validity 

13  of  any  challenge  under  subparagraph  (B)  or  waived 

14  the  right  to  make  such  challenge;  and 

15  (G)  that  each  State  establish  procedures  to  en- 

16  sure  that  any  background  check  under  subsection 

17  (a)  and  the  results  thereof  shall  be  requested  by  and 

18  provided  only  to— 

19  (i)  qualified  entities  identified  by  States; 

20  (ii)  authorized  representatives  of  a  quali- 

21  fled  entity  who  have  a  need  to  know  such  infor- 

22  mation; 

23  (iii)  the  provider  who  is  the  subject  of  a 

24  background  check; 

25  (iv)  law  enforcement  authorities;  or 

•  HR  1237  m 


11 


9 

1  (v)  pursuant  to  the  direction  of  a  court  of 

2  law; 

3  (H)    that  background   check   information   con- 

4  veyed  to  a  qualified  entity  pursuant  to  subsection  (a) 

5  shall  not  be  conveyed  to  any  person  except  as  pro- 

6  vided  under  subparagraph  (G);  and 

7  (I)  that  a  State  or  Federal  employee  or  an  em- 

8  ployee  of  a  political  subdivision  of  a  State  respon- 

9  sible  for  providing  information  to  the  national  crimi- 

10  nal  background  check  system  shall  not  be  liable  in 

11  an  action  at  law  for  damages  for  failure  to  prevent 

12  a  qualified  entity  from  taking  action  adverse  to  a 

13  provider   on   the   basis   of  a   criminal   background 

14  check. 

15  (c)  Equivalent  Procedures. — (1)  Notwithstand- 

16  ing  anything  tc  the  contrary  in  this  section,  the  Attorney 

17  General  may  certify  that  a  State  licensing  or  certification 

18  procedure  that  differs  from  the  procedures  described  in 

19  subsections  (a)  and  (b)  shall  be  deemed  to  be  the  equiva- 

20  lent  of  such  procedures  for  purposes  of  this  Act,  but  the 

21  procedures  described  in  subsections  (a)  and  (b)  shall  con- 

22  tinue  to  apply  to  those  qualified  entities,  providers,  and 

23  background  check  crimes  that  are  not  governed  by  or  in- 

24  eluded  within  the  State  licensing  or  certification  proce- 

25  dure. 


12 

10 

1  (2)  The  Attorney  General  shall  by  regulation  estab- 

2  lish  criteria  for  certifications  under  this  subsection.  Such 

3  criteria  shall  include  a  finding  by  the  Attorney  General 

4  that  the  State  licensing  or  certification  procedure  accom- 

5  plishes  the  purposes  of  this  Act  and  incorporates  a  nation- 

6  wide  review  of  State  and  Federal  records  of  background 

7  check  offenses  through  the  national  criminal  background 

8  check  system. 

9  (d)  Regulations. — (1)  The  Attorney  General  may 

10  by  regulation  prescribe  such  other  measures  as  may  be 

11  required  to  carry  out  the  purposes  of  this  Act,  including 

12  measures  relating  to  the  security,  confidentiality,  accu- 

13  racy,  use,  misuse,  and  dissemination  of  information,  and 

14  audits  and  recordkeeping. 

15  (2)  The  Attorney  General  shall,  to  the  maximum  ex- 

16  tent  possible,  encourage  the  use  of  the  best  technology 

17  available  in  conducting  background  checks. 

18  SEC.   4.  FUNDING  FOR  IMPROVEMENT  OF   CHILD  ABUSE 

19  CRIME  INFORMATION. 

20  (a)  Use  of  Formula  Grants  for  Improvements 

21  in  State  Records  and  Systems. — Section  509(b)  of 

22  the  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968 

23  (42  U.S.C.  3759(b))  is  amended— 

24  (1)  in  paragraph  (2)  by  striking  "and"  after 

25  the  semicolon; 

•HR  1237  IH 


13 


11 

1  (2)  in  paragraph  (3)  by  striking  the  period  and 

2  inserting  ";  and";  and 

3  (3)   by  adding  at  the  end  the  following  new 

4  paragraph: 

5  "(4)  the  improvement  of  State  record  systems 

6  and  the  sharing  of  all  of  the  records  described  in 

7  paragraphs  (1),   (2),  and  (3)  and  the  records  re- 

8  quired  under  section  2  of  the  National  Child  Protec- 

9  tion  Act  of  1993  with  the  Attorney  General  for  the 

10  purpose  of  implementing  the  National  Child  Protec- 

11  tion  Act  of  1993.". 

12  (b)  Additional  Funding  Grants  for  the  Im- 

13  PROVEMENT   OF  CHILD  ABUSE   CRIME   INFORMATION. — 

14  (1)  The  Attorney  General  shall,  subject  to  appropriations 

15  and  with  preference  to  States  that,  as  of  the  date  of  enact- 

16  ment  of  this  Act,  have  in  computerized  criminal  history 

17  files  the  lowest  percentage  of  dispositions  of  identifiable 

18  child  abuse  cases,  make  a  grant  to  each  State  to  be  used — 

19  (A)  for  the  computerization  of  criminal  history 

20  files  for  the  purposes  of  this  Act; 

21  (B)  for  the  improvement  of  existing  computer- 

22  ized  criminal  history  files  for  the  purposes  of  this 

23  Act; 


•HR  1237  EH 


14 


12 

1  (C)    to   improve   accessibility  to   the   national 

2  criminal  background  check  system  for  the  purposes 

3  of  this  Act;  and 

4  (D)  to  assist  the  State  in  the  transmittal  of 

5  criminal  records  to,  or  the  indexing  of  criminal  his- 

6  tory  record   in,   the   national   criminal   background 

7  check  system  for  the  purposes  of  this  Act. 

8  (2)   There  are   authorized  to  be   appropriated  for 

9  grants  under  paragraph  (1)  a  total  of  $20,000,000  for  fis- 

10  cal  years  1994,  1995,  and  1996. 

11  (c)  Withholding  State  Funds. — Effective  1  year 

12  after  the  date  of  enactment  of  this  Act,  the  Attorney  Gen- 

13  eral  may  reduce,  by  up  to  10  percent,  the  allocation  to 

14  a  State  for  a  fiscal  year  under  title  I  of  the  Omnibus 

15  Crime  Control  and  Safe  Streets  Act  of  1968  that  is  not 

16  in  compliance  with  the  timetable  established  for  that  State 

17  under  section  2  of  this  Act. 

18  SEC.  5.  DEFINITIONS. 

19  For  the  purposes  of  this  Act — 

20  (1)  the  term  "authorized  agency"  means  a  divi- 

21  sion  or  office  of  a  State  designated  by  a  State  to  re- 

22  port,  receive,  or  disseminate  information  under  this 

23  Act; 

24  (2)  the  term  "background  check  crime"  means 

25  a  child  abuse  crime,  murder,  manslaughter,  aggra- 

•HR  1237  SB 


15 


13 

1  vated  assault,  kidnapping,  arson,  sexual  assault,  do- 

2  mestic  violence,  incest,  indecent  exposure,  prostitu- 

3  tion,  promotion  of  prostitution,  and  a  felony  offense 

4  involving  the  use  or  distribution  of  a  controlled  sub- 

5  stance; 

6  (3)  the  term  "child"  means  a  person  who  is  a 

7  child  for  purposes  of  the  criminal  child  abuse  law  of 

8  a  State; 

9  (4)  the  term  "child  abuse"  means  the  physical 

10  or  mental  injury,  sexual  abuse  or  exploitation,  ne- 

11  glectful  treatment,  negligent  treatment,  or  maltreat- 

12  ment  of  a  child  by  any  person  in  violation  of  the 

13  criminal  child  abuse  laws  of  a  State,  but  does  not  in- 

14  elude  discipline  administered  by  a  parent  or  legal 

15  guardian  to  his  or  her  child  provided  it  is  reasonable 

16  in  manner  and  moderate  in  degree  and  otherwise 

17  does  not  constitute  cruelty; 

18  (5)  the  term  "child  abuse  crime"  means  a  crime 

19  committed  under  any  law  of  a  State  that  establishes 

20  criminal  penalties  for  the  commission  of  child  abuse 

21  by  a  parent  or  other  family  member  of  a  child  or  by 

22  any  other  person; 

23  (6)  the  term  "child  abuse  crime  information" 

24  means  the  following  facts  concerning  a  person  who 

25  is  under  indictment  for,  or  has  been  convicted  of,  a 

•HR  1237  IH 


16 


14 

1  child  abuse  crime:  full  name,  race,  sex,  date  of  birth, 

2  height,  weight,   fingerprints,   a  brief  description  of 

3  the  child  abuse  crime  or  offenses  for  which  the  per- 

4  son  has  been  arrested  or  is  under  indictment  or  has 

5  been  convicted,  the  disposition  of  the  charge,  and 

6  any  other  information  that  the  Attorney  General  de- 

7  termines  may  be  useful  in  identifying  persons  ar- 

8  rested  for,  under  indictment  for,  or  convicted  of,  a 

9  child  abuse  crime; 

10  (7)  the  term  "child  care"  means  the  provision 

11  of  care,  treatment,  education,  training,  instruction, 

12  supervision,  or  recreation  to  children; 

13  (8)  the  term  "domestic  violence"  means  a  fel- 

14  ony  or  misdemeanor  involving  the  use  or  threatened 

15  use  of  force  by — 

16  (A)  a  present  or  former  spouse  of  the  vic- 

17  tim; 

18  (B)  a  person  with  whom  the  victim  shares 

19  a  child  in  common; 

20  (C)  a  person  who  is  cohabiting  with  or  has 

21  cohabited  with  the  victim  as  a  spouse;  or 

22  (D)  any  person  defined  as  a  spouse  of  the 

23  victim  under  the  domestic  or  family  violence 

24  laws  of  a  State; 


•HR  1237  IH 


17 


15 

1  (9)  the  term  "exploitation"  means  child  pornog- 

2  raphy  and  child  prostitution; 

3  (10)  the  term  "mental  injury"  means  harm  to 

4  a  child's   psychological   or  intellectual   functioning, 

5  which  may  be  exhibited  by  severe  anxiety,  depres- 

6  sion,  withdrawal  or  outward  aggressive  behavior,  or 

7  a  combination  of  those  behaviors  or  by  a  change  in 

8  behavior,  emotional  response,  or  cognition; 

9  (11)   the  term  "national  criminal  background 

10  check   system"   means   the   criminal   history  record 

1 1  system  maintained  by  the  Federal  Bureau  of  Inves- 

12  tigation  based  on  fingerprint  identification  or  any 

13  other  method  of  positive  identification; 

14  (12)  the  term  "negligent  treatment"  means  the 

15  failure  to  provide,  for  a  reason  other  than  poverty, 

16  adequate  food,  clothing,  shelter,  or  medical  care  so 

17  as  to  seriously  endanger  the  physical  health  of  a 

18  child; 

19  (13)  the  term  "physical  injury"  includes  lacera- 

20  tions,  fractured  bones,  burns,  internal  injuries,  se- 

21  vere  bruising,  and  serious  bodily  harm; 

22  (14)  the  term  "provider"  means 

23  (A)  a  person  who — 

24  (i)  is  employed  by  or  volunteers  with 

25  a  qualified  entity; 

•HR  1237  IH 


18 


16 

1  (ii)  who  owns  or  operates  a  qualified 

2  entity;  or 

3  (iii)  who  has  or  may  have  unsuper- 

4  vised  access  to  a  child  to  whom  the  quali- 

5  fied  entity  provides  child  care;  and 

6  (B)  a  person  who— 

7  (i)  seeks  to  be  employed  by  or  volun- 

8  teer  with  a  qualified  entity; 

9  (ii)  seeks  to  own  or  operate  a  qualified 

10  entity;  or 

11  (iii)  seeks  to  have  or  may  have  unsu- 

12  pervised  access  to  a  child  to  whom  the 

13  qualified  entity  provides  child  care; 

14  (15)  the  term  "qualified  entity"  means  a  busi- 

15  ness  or  organization,  whether  public,  private,  for- 

16  profit,    not-for-profit,    or   voluntary,    that    provides 

17  child  care  or  child  care  placement  services,  including 

18  a  business  or  organization  that  licenses  or  certifies 

19  others  to  provide  child  care  or  child  care  placement 

20  services; 

21  (16)  the  term  "sex  crime"  means  an  act  of  sex- 

22  ual  abuse  that  is  a  criminal  act; 

23  (17)  the  term  "sexual  abuse"  includes  the  em- 

24  ployment,  use,  persuasion,  inducement,  enticement, 

25  or  coercion  of  a  child  to  engage  in,  or  assist  another 

•HR  1237  IH 


19 


17 

1  person  to  engage  in,  sexually  explicit  conduct  or  the 

2  rape,  molestation,  prostitution,  or  other  form  of  sex- 

3  ual  exploitation  of  children  or  incest  with  children; 

4  and 

5  (18)  the  term  "State"  means  a  State,  the  Dis- 

6  trict   of  Columbia,    the   Commonwealth   of  Puerto 

7  Rico,  American  Samoa,  the  Virgin  Islands,  Guam, 

8  and  the  Trust  Territories  of  the  Pacific. 


•  HR  1237  IH 


20 


20 


I 


Mr.  Edwards.  I  yield  to  the  gentlewoman  from  Colorado,  Mrs. 
Schroeder. 

Mrs.  Schroeder.  Thank  you  very  much,  Mr.  Chairman.  I  think 
ou  are  underplaying  your  very  active  role  in  helping  us  draft  this 
ill.  We  thank  you  so  much  for  helping  us. 

The  original  cosponsors  of  the  bill  are  delighted  that  this  hearing 
has  been  scheduled  because  this  is  something  we  have  been  trying 
to  get  through  here  forever,  and  I  think  it  is  long  overdue. 

The  National  Child  Protection  Act  of  1993  is  what  we  are  talking 
about  today.  It  is  something  that  Oprah  Winfrey  has  dedicated  her 
energy  and  talents  to.  The  bottom  line  is  it  is  incredible  in  this 
country  that  with  all  the  technology,  with  all  the  ways  that  we 
could  streamline  communication  between  States,  that  we  have  still 
not  done  this  vis-a-vis  protecting  children  from  people  who  have 
moved  across  jurisdictions  and  continue  to  interface  with  kids. 

What  this  legislation  basically  does  is  to  provide  grants  to  States 
to  improve  their  reporting  to  the  national  crime  reporting  system 
that  provides  the  data  on  convicted  child  abusers.  That  is  very  im- 
portant. Then  States  will  be  able  to  access  this  data  base  to  finish 
background  checks  on  anyone  who  is  going  to  be  a  child  care  pro- 
vider or  a  volunteer  in  youth  service  organizations. 

I  have  always  been  amazed,  I  think  all  the  cosponsors  have  been 
amazed,  that  we  seem  to  care  much  more  about  cars  than  we  do 
kids  in  this  country.  We  have  much  better  information  systems 
about  stolen  cars,  about  all  of  those  types  of  issues  around  auto- 
mobiles, than  we  do  children. 

This  bill  would  authorize  $20  million  in  direct  Federal  assistance 
to  help  States  improve  the  reporting  of  their  criminal  justice 
records.  I  think  that  the  issues  that  the  chairman  brought  up  are 
very  important.  We  obviously  want  to  make  sure  these  records  are 
valid  and  that  they  are  not  prejudging  people.  But  once  we  have 
found  someone  convicted,  we  want  them  on  the  record  so  that  peo- 
ple can  find  this  out. 

I  thank  you  so  much  for  moving  on  this.  I  am  anxious  to  hear 
the  witnesses  today.  I  am  going  to  ask  unanimous  consent  to  put 
the  rest  of  my  statement  in  the  record,  Mr.  Chairman.  And  thank 
you  once  more  sincerely  for  your  help  and  the  staffs  help  and  ev- 
eryone else's  in  bringing  this  to  the  forefront  today. 

Mr.  Edwards.  Without  objection,  the  gentlewoman's  statement 
will  be  made  part  of  the  record  in  full. 

[The  prepared  statement  of  Mrs.  Schroeder  follows:] 

Prepared  Statement  of  Hon.  Patricia  Schroeder,  a  Representative  in 
Congress  From  the  State  of  Colorado 

Mr.  Chairman,  thank  you  for  holding  this  hearing  today  and  for  your  support 
throughout  the  development  of  this  bill.  On  March  4,  you  and  I  along  with  Rep- 
resentatives Bud  Cramer,  Michael  Kopetski,  Jim  Ramstad,  Bob  Smith,  and  Chris 
Shays  introduced  the  National  Child  Protection  Act  of  1993.  This  bill  is  designed 
to  protect  children  from  being  abused  and  victimized  when  they  are  in  child  care 
or  involved  in  youth  activities  outside  their  homes. 

I  want  to  thank  the  original  cosponsors  as  well  as  the  other  additional  cosponsors 
of  this  legislation  for  their  commitment  to  ensuring  the  safety  of  our  nation's  most 
vulnerable  children.  I  also  want  to  thank  the  many  groups  that  have  responded  so 
positively  to  the  legislation  and  have  provided  valuable  input. 

A  very  special  thanks  to  Ms.  Oprah  Winfrey  who  has  dedicated  her  energy  and 
talents  to  focusing  the  spotlight  or  public  attention  on  the  issue  of  child  abuse  and 
this  issue  in  particular. 


21 


21 

I  also  want  to  thank  the  members  and  staff  of  the  former  House  Select  Committee 
on  Children,  Youth,  and  Families.  Their  hard  work  on  this  issue  and  the  issue  of 
child  abuse  will  be  sorely  missed  by  Congress. 

This  legislation  will  provide  grants  to  states  to  improve  their  reporting  to  the  na- 
tional crime  reporting  system  by  providing  data  on  convicted  child  abusers.  States 
will  be  able  to  access  the  data  base  to  complete  background  checks  on  potential  and 
current  child  care  providers  and  volunteers  with  youth  service  organizations.  Hav- 
ing access  to  this  data  will  prevent  persons  convicted  of  child  abuse  crimes  from 
being  hired  in  these  settings. 

The  bill  authorizes  $20  million  in  direct  Federal  assistance  to  help  states  to  im- 
prove the  reporting  of  their  criminal  justice  records.  The  legislation  includes  specific 
timetables  so  that  accurate,  up-to-date  information  on  child  abuse  convictions  will 
be  available  on  a  national  basis  within  three  years.  The  bill  contains  safeguards  to 
ensure  that  information  provided  is  accurate,  current,  and  includes  only  convictions 
of  abuse. 

Child  care  providers  and  youth-serving  organizations  will  be  able  to  conduct  back- 
ground checks  on  current  or  potential  employees  or  volunteers  by  making  applica- 
tions with  the  appropriate  state  agency.  The  cost  of  the  background  check  will  be 
borne  by  the  employer  or  organization. 

I'm  anxious  to  hear  our  witnesses  today  and  to  swiftly  report  out  this  bill  so  the 
full  House  can  pass  it. 

Mr.  Edwards.  The  ranking  minority  member,  Mr.  Henry  Hyde 
of  Illinois,  deeply  regrets  that  a  prior  appointment  will  not  allow 
him  to  be  here  today.  Mr.  Hyde  has  always  been  of  great  help  in 
legislation  like  this  and  I  know  he  is  sorry  that  he  is  not  here. 

The  gentleman  from  Florida,  Mr.  Canady. 

Mr.  Canady.  Thank  you,  Mr.  Chairman.  I  would  like  to  join  in 
thanking  you  for  calling  this  hearing  today.  This  is  an  important 
issue  and  deserves  the  consideration  of  this  committee. 

I  appreciate  each  of  the  witnesses  taking  their  time  to  be  with 
us  and  I  am  looking  forward  to  hearing  what  they  have  to  say.  This 
is  a  somewhat  complex  issue  and  I  think  it  deserves  our  serious 
consideration. 

We  need  to  look  at  all  aspects  of  it  to  make  sure  we  come  up  with 
a  workable  solution  that  will  provide  the  information  we  need  in 
a  cost-effective  manner. 

Thank  you,  Mr.  Chairman. 

Mr.  Edwards.  Thank  you,  Mr.  Canady. 

Our  first  witnesses  is  David  F.  Nemecek  who  has  been  a  friend 
and  adviser  to  the  subcommittee  for  many  years  and  we  have 
worked  very  closely  with  Mr.  Nemecek.  He  is  the  Deputy  Assistant 
Director  in  charge  of  the  Policy  and  Liaison  Branch  of  the  Criminal 
Justice  Information  Services  Division  of  the  FBI. 

Welcome. 

Without  objection,  your  full  statement  will  be  made  part  of  the 
record.  If  you  could  summarize  your  statement,  we  would  appre- 
ciate it. 

STATEMENT  OF  DAVED  F.  NEMECEK,  INSPECTOR,  DEPUTY  AS- 
SISTANT DIRECTOR,  POLICY  AND  LIAISON  BRANCH,  CRIMI- 
NAL JUSTICE  INFORMATION  SERVICES  DIVISION,  FBI 

Mr.  Nemecek.  Thank  you  very  much,  Mr.  Chairman,  other  Mem- 
bers, staff.  It  is  a  pleasure  for  me  to  be  here  again  today  and  to 
make  some  brief  comments  regarding  this  particular  issue. 

With  regard  to  H.R.  1237,  the  National  Child  Protection  Act,  let 
me  first  state  unequivocally  that  the  administration  strongly  sup- 
ports the  goals  of  tnis  act,  protection  of  this  Nation's  children  from 


22 

abuse.  Nothing  is  more  important  than  the  well-being  of  our  most 
precious  national  resource,  our  children. 

The  FBI  and  the  Department  of  Justice  are  committed  to  the 
successful  implementation  of  legislation  which  addresses  this 
problem. 

My  testimony  today  will  address  your  bill  from  the  perspective 
of  the  FBI.  As  you  indicated,  I  represent  the  new  CJIS  Division. 
This  Division  is  particularly  affected  by  any  legislation  which  in- 
volves access  to  documented  criminal  information,  whether  the  in- 
formation is  to  identify  fugitives  or  criminal  history  records.  This 
Division  is  now  responsible  for  managing  all  of  these  information 
services.  These  include  the  National  Crime  Information  Center, 
known  as  NCIC,  the  uniform  crime  reporting  system,  which  is  our 
statistical  system,  and  the  fingerprint-based  criminal  history  record 
system. 

NCIC  is  the  online  system  accessed  by  police  officers  typically 
throughout  the  United  States  when  a  citizen  is  contacted  on  the 
street.  NCIC  provides  information  on  fugitives,  missing  children 
and  stolen  property  such  as  motor  vehicles. 

The  interstate  identification  index,  known  as  III,  which  is 
accessed  through  the  NCIC  system,  is  an  automated  criminal  his- 
tory record  system  that  can  be  inquired  upon  based  upon  name  and 
numeric  identifier.  A  III  response  provides  arrest  and  disposition 
information,  originating  from  State  records  in  24  States,  and  these 
are  known  as  participating  States. 

The  rest  of  the  criminal  history  record  information  now  comes 
from  the  FBI,  until  such  time  as  these  States  are  in  a  technical  po- 
sition to  provide  their  records.  Due  to  the  laws  of  many  of  the  24 
participating  States  which  restrict  dissemination  of  criminal  his- 
tory records,  the  III  system  is  currently  reserved  only  for  criminal 
justice  agencies  for  criminal  justice  purposes  and  for  certain  Fed- 
eral agencies  with  national  security  responsibilities  for  narrowly 
defined  national  security  purposes. 

Perhaps  most  important  to  my  discussion  of  1237  is  access  to 
FBI-maintained  fingerprint  records.  These  records  consist  of  finger- 
print records,  personal  identification  information,  such  as  date  of 
birth  and  physical  descriptors,  and  listings  of  the  subject's  arrest 
and  disposition  of  these  arrests. 

These  records  are  currently  accessed  by  manual  submission,  that 
is  through  the  mail,  by  submitting  all  fingerprints  for  criminal  jus- 
tice and  noncriminal  justice  purposes  as  covered  by  applicable  Fed- 
eral and  State  laws. 

We  are  in  the  process  of  upgrading  all  of  these  systems.  With  the 
support  of  this  committee  and  Congress,  we  are  in  the  process  of 
creating  a  new  automated  system  called  the  integrated  automated 
fingerprint  identification  system,  known  as  IAFIS,  and  this  will  be 
completed  in  1998. 

This  will  support  automated  submission  of  10-print  fingerprint 
cards  for  all  criminal  and  noncriminal  justice  purposes.  This  will 
permit  online  searching,  and  what  that  means  is  a  very  timely  in- 
quiry to  determine  identification,  as  well  as  to  retrieve  criminal 
history  records. 

This  will  greatly  increase  the  speed  and  efficiency  of  noncriminal 
justice  background   screening,   possibly   reducing  the   turnaround 


23 

time  from  the  current  average  of  2  weeks  to  2  hours,  or  up  to  24 
hours. 

Many  Federal  and  State  agencies  now  access  this  data  base  for 
many  of  the  purposes  covered  by  1237.  Thirty-one  States  and  the 
District  of  Columbia  have  enacted  statutes  that  require  criminal 
history  screening  for  some  category  of  child  care  providers.  This 
screening  is  currently  accomplished  through  submission  of  finger- 
prints to  the  FBI,  channeled  through  the  State  Identification 
Bureau. 

In  addition,  the  Comprehensive  Crime  Control  Act  of  1990  re- 
quires criminal  history  screening  for  employees  of  federally  run 
child  care  centers.  Effectiveness  of  screening  via  these  provisions  is 
currently  being  evaluated  by  the  Inspector  General  of  the  Depart- 
ment of  Health  and  Human  Services. 

Child  care  provider  criminal  history  background  screening  is  cur- 
rently accomplished  by  providing  the  complete  criminal  history 
record  to  a  Federal,  State  or  local  agency.  These  private  child  care 
providers  do  not  receive  access  to  an  applicant's  criminal  history  in- 
formation. That  is,  there  is  a  screening  or  regulating  agency  at  the 
State  level. 

This  system  has  tangible  benefits.  First,  use  of  licensing  or 
screening  agencies  ensures  uniform  application  of  standards  with 
respect  to  whether  certain  criminal  records  disqualify  an  applicant 
for  employment.  Second,  control  of  the  information,  which  is  gen- 
erally sensitive  and  not  for  general  dissemination,  is  greater  with 
governmental  agencies. 

Centralization  of  the  screening  function  provides  an  easily  acces- 
sible point  for  auditing  of  access  to  and  dissemination  of  sensitive 
record  information.  This  is  an  issue  to  which  the  FBI  is  particu- 
larly sensitive.  Protection  of  criminal  history  records  has  proven  to 
be  difficult,  especially  without  the  existence  of  complete  Federal 
criminal  sanctions  against  unauthorized  possession  and/or  dissemi- 
nation of  such  information. 

One  of  the  strengths  of  H.R.  1237  is  its  recognition  of  the  impor- 
tance of  fingerprints  to  the  screening  process  as  the  only  existing 
method  of  positive  identification.  This  proposal  appropriately  re- 
quires criminal  history  screening  by  fingerprint  submissions  and 
therefore  will  avoid  misidentification.  The  FBI  continues  to  support 
and  urge  the  use  of  fingerprint  identification  in  all  history  record 
screening  systems. 

Several  other  technical  points  should  also  be  highlighted.  Section 
3(b)(E)  limits  the  information  that  can  be  disseminated  to  author- 
ized recipients  to  "convictions."  FBI  criminal  history  records  to  a 
large  extent  are  not  complete  with  respect  to  disposition  of  arrests. 

Additionally,  State  criminal  records  are  often  not  complete  or 
fully  automated,  making  access  as  required  by  1237  difficult,  if  not 
impossible,  without  significant  updating  and  improvement  of  many 
State  systems.  H.R.  1237  contains  some  funding  authorizations  for 
these  purposes  similar  to  funding  provided  in  previous  handgun 
purchaser  screening  legislation. 

Much  of  the  burden  of  legislation  which  involves  access  to  crimi- 
nal history  records  falls  on  State  record  systems.  These  burdens  in- 
clude minimum  standards  for  disposition  reporting  which  must  be 
met  within  specific  time  periods,  subject  to  funding  cuts  if  not  met. 


24 

It  is  likely  that  many  States  will  face  such  reductions  absent  sig- 
nificant Federal  funding. 

I  would  also  note  that  currently  Congress  has  authorized  the  FBI 
to  charge  fees  for  noncriminal  justice  access  to  our  record  system. 
These  fees  are  necessary  to  maintain  the  system  given  the  addi- 
tional burden  that  employment  and  licensing  screening  creates. 

We  read  nothing  in  H.R.  1237  that  abrogates  this  authorization 
for  screening  requests  under  its  provisions  and  believe  such  fees  to 
be  appropriate  given  the  interests  of  both  the  Federal  Government 
and  States  in  fairly  apportioning  the  cost  of  the  system. 

In  closing,  the  FBI,  Department  of  Justice  and  the  administra- 
tion strongly  support  the  goals  of  this  legislation  and  look  forward 
to  continued  cooperation  with  your  subcommittee  in  your  efforts  to 
address  this  important  problem. 

Thank  you,  Mr.  Chairman. 

Mr.  Edwards.  Thank  you. 

[The  prepared  statement  of  Mr.  Nemecek  follows:] 

Prepared  Statement  of  David  F.  Nemecek,  Inspector,  Deputy  Assistant  Direc- 
tor, Policy  and  Liaison  Branch,  Criminal  Justice  Information  Services  Di- 
vision, FBI 

Mr.  Chairman,  and  members  of  the  Subcommittee,  I  appreciate  the  opportunity 
to  appear  before  you  today  to  discuss  H.R.  1237,  the  "National  Child  Protection  Act." 
Let  me  first  state  unequivocally  that  the  Administration  strongly  supports  the  goals 
of  the  Act — protection  of  this  Nation's  children  from  abuse.  Nothing  is  more  impor- 
tant than  the  well-being  of  our  most  precious  national  resource — our  children.  The 
FBI  and  the  Department  of  Justice  are  committed  to  the  successful  implementation 
of  legislation  which  addresses  this  problem.  My  testimony  today  will  address  your 
bill  from  the  perspective  of  the  FBI. 

As  you  know,  I  represent  the  FBI's  newly  formed  Criminal  Justice  Information 
Services  Division.  CJIS,  as  the  Division  is  known,  is  particularly  affected  by  any  leg- 
islation, such  as  H.R.  1237,  which  involves  access  to  documented  criminal  informa- 
tion, whether  it  be  information  to  identify  fugitives  or  criminal  history  record.  CJIS 
is  now  responsible  for  managing  all  FBI  systems  providing  criminal  or  identification 
information  to  Federal,  state,  and  local  agencies.  These  systems  include  the  Na- 
tional Crime  Information  Center,  known  as  NCIC,  the  Uniform  Crime  Reporting 
program,  and  the  fingerprint-based  criminal  history  record  system. 

A  brief  word  of  explanation  about  some  of  these  systems  may  be  helpful  because 
they  may  be  affected  directly  by  this  and  other  similar  legislative  proposals.  NCIC 
is  the  online  system  accessed  by  police  officers  typically  when  a  citizen  is  contacted 
on  the  street.  NCIC  provides  information  specifically  to  enable  the  immediate  identi- 
fication of  fugitives,  missing  persons,  and  stolen  property  such  as  motor  vehicles. 

The  Interstate  identification  Index,  known  as  III,  is  accessed  through  the  NCIC 
telecommunications  network.  Ill  provides  automated  criminal  history  information 
based  on  name  and  a  numeric  identifier.  An  III  response,  which  provides  arrest  and 
disposition  information,  originates  from  the  criminal  records  maintained  by  24 
states,  known  as  "participating  states,"  and  from  FBI  records  for  the  26  non-  "par- 
ticipating" states.  Due  to  laws  of  many  of  the  24  participating  states  which  restrict 
dissemination  of  criminal  records,  III  is  currently  reserved  for  1)  criminal  justice 
agencies  using  III  for  criminal  justice  purposes,  and  2)  certain  Federal  agencies  with 
National  security  responsibility  for  narrowly  defined  National  security  employee 
screening. 

Perhaps  most  important  to  my  discussion  of  H.R.  1237,  is  access  to  FBI-main- 
tained fingerprint  records.  These  records  consist  of  fingerprints,  personal  identifica- 
tion information,  such  as  date-of-birth  and  physical  descriptors,  and  listings  of  the 
subject's  arrests  and  dispositions  of  those  arrests.  These  records  are  currently 
accessed  by  manual  submission  of  ten-print  fingerprint  cards  for  both  criminal  jus- 
tice and  noncriminal  justice  purposes  under  applicable  Federal  and  state  laws. 

All  of  these  systems  are  in  the  process  of  being  upgraded.  The  Integrated  Auto- 
mated Fingerprint  Identification  System  (IAFIS),  scheduled  to  be  completed  in  early 


25 

1998,  will  support  automated  submission  of  ten-print  fingerprint  records  for  screen- 
ing purposes.  This  system  will  allow  the  online  submission  and  searching  of  finger- 
prints, and  the  return  of  relevant  criminal  history  records  to  criminal  justice  re- 
questers. This  will  greatly  increase  the  speed  and  efficiency  of  noncriminal  justice 
background  screening  possibly  reducing  the  turn-around  time  from  the  current  two 
weeks  to  two  hours. 

Many  Federal  and  state  agencies  now  access  the  fingerprint-based  criminal  his- 
tory records  maintained  by  the  FBI  for  purposes  similar  or  identical  to  the  purpose 
of  Hit.  1237.  Thirty-one  (31)  states  and  the  District  of  Columbia  have  enacted  stat- 
utes that  require  criminal  history  screening  for  some  category  of  child  care  provid- 
ers. This  screening  is  currently  accomplished  through  submission  of  fingerprints  to 
the  FBI.  In  addition,  the  Comprehensive  Crime  Control  Act  of  1990  requires  crimi- 
nal history  screening  for  employees  of  Federally-run  child  care  centers.  The  effec- 
tiveness of  screening  pursuant  to  these  provisions  is  currently  being  evaluated  by 
the  Inspector  General  of  the  Department  of  Health  and  Human  Services. 

Chile!  care  provider  criminal  history  background  screening  is  currently  accom- 
plished by  providing  the  complete  criminal  history  record  to  a  Federal,  state,  or  local 
agency.  Private  child  care  providers  do  not  receive  access  to  an  applicant's  criminal 
history  record  information.  This  system  has  tangible  benefits.  First,  use  of  licensing 
or  screening  agencies  ensures  uniform  application  of  standards  with  respect  to 
whether  certain  criminal  records  disqualify  an  applicant  for  employment.  Second, 
control  of  the  information,  which  is  generally  sensitive  and  not  for  general  dissemi- 
nation, is  greater  with  governmental  agencies.  Centralization  of  the  screening  func- 
tion provides  an  easily  accessible  point  for  auditing  of  access  to  and  dissemination 
of  sensitive  record  information.  This  is  an  issue  to  which  the  FBI  is  particularly  sen- 
sitive. Protection  of  criminal  history  records  has  proven  to  be  difficult,  especially 
without  the  existence  of  any  Federal  criminal  sanctions  against  unauthorized  pos- 
session and/or  dissemination  of  such  information. 

One  of  the  strengths  of  H.R.  1237  is  its  recognition  of  the  importance  of  finger- 
prints to  the  screening  process  as  the  only  existing  method  of  positive  identification. 
This  proposal  appropriately  requires  criminal  history  screening  by  fingerprint  sub- 
missions and  therefore  will  avoid  misidentification.  The  FBI  continues  to  support 
and  urge  the  use  of  fingerprint  identification  in  all  criminal  history  screening 
systems. 

Several  other  technical  points  should  also  be  highlighted.  Section  3(b)(E)  limits 
the  information  that  can  be  disseminated  to  authorized  recipients  to  "convictions." 
FBI  criminal  history  records  to  a  large  extent  are  not  complete  with  respect  to  dis- 
positions of  arrests.  Additionally,  state  criminal  records  are  often  not  fully  auto- 
mated, making  access  as  required  by  H.R.  1237  difficult,  if  not  impossible,  without 
significant  updating  and  improvement  of  many  state  systems.  H.R.  1237  contains 
some  funding  authorizations  for  these  purposes,  similar  to  funding  provided  in  pre- 
vious handgun  purchaser  screening  legislation.  Much  of  the  burden  of  legislation 
which  involves  access  to  criminal  history  records  falls  on  state  record  systems. 
Those  burdens  include,  with  respect  to  H.R.  1237,  minimum  standards  for  disposi- 
tion reporting  which  must  be  met  within  specific  time  periods,  subject  to  funding 
cuts  if  not  met.  It  is  likely  that  many  states  will  face  such  reductions  absent  signifi- 
cant Federal  funding. 

I  would  also  note  that  currently  Congress  has  authorized  the  FBI  to  charge  fees 
for  noncriminal  justice  access  to  our  criminal  history  record  system.  These  fees  are 
necessary  to  maintain  the  system  given  the  additional  burden  that  employment  and 
licensing  screening  creates.  We  read  nothing  in  H.R.  1237  that  abrogates  this  au- 
thorization for  screening  requests  under  its  provisions  and  believe  such  fees  to  be 
appropriate  given  the  interests  of  both  the  Federal  government  and  states  in  fairly 
apportioning  the  costs  of  the  system. 

In  closing,  let  me  again  state:  the  FBI,  Department  of  Justice,  and  the  Adminis- 
tration strongly  support  the  goals  of  this  legislation  and  look  forward  to  continued 
cooperation  with  your  Subcommittee  in  your  efforts  to  address  this  important  prob- 
lem. 

I  would  be  happy  to  answer  any  questions  members  of  the  Subcommittee  may 
have. 

Mr.  Edwards.  Mrs.  Schroeder,  do  you  have  any  questions  of  the 
FBI? 

Mrs.  Schroeder.  I  am  not  quite  sure  I  understood,  you  said 
there  are  24  States  going  along  with  the  III? 

Mr.  Nemecek.  Yes.  We  actually  have  50  States  that  make  in- 
quiries into  the  system.  We  are  in  the  process  of  decentralizing  the 


26 

FBI's  recordkeeping  responsibility  because  we  know  there  are  more 
accurate  and  complete  records  at  the  State  level.  We  have  24 
States  now  that  have  connected  their  computers  to  our  computer 
systems  so  that  we  can  have  a  rapid  retrieval  of  that  information 
rather  than  relying  on  the  FBI's  records. 

So  this  actually  is  a  positive  step  to  giving  us  more  complete 
records  for  these  purposes. 

Mrs.  Schroeder.  So  this  bill  would  help  accelerate  that,  the  $20 
million  in  grants  for  States? 

Mr.  NEMECEK.  Certainly,  it  will  help.  One  of  the  conditions  of 
participating  is  to  have  good  quality  records,  more  complete 
records,  automated  records,  and  certainly  this  money  would  help 
accelerate  that  process. 

Mrs.  Schroeder.  What  do  you  see  as  the  biggest  drawback?  If 
you  had  a  wish  list — I  know  you  said  you  basically  support  this.  If 
there  was  one  thing  you  could  put  in  here  that  would  make  the 
FBI's  iob  easier — is  it  an  FBI  problem,  is  it  a  State  court  problem, 
is  it  that  you  don't  have  proper  equipment?  What  is  the  problem? 

Mr.  NEMECEK.  I  am  sure  it  is  a  fairly  common  problem,  but  as 
long  as  I  am  wishing,  the  wish  is  that  there  would  be  sufficient 
money  to  have  100  percent  accurate  records  with  all  of  the  disposi- 
tions, arrests,  convictions,  and  that  all  these  records  were 
automated. 

As  I  believe  you  are  aware,  we  have  spent  a  number  of  years  try- 
ing to  improve  the  quality  of  these  records  at  the  FBI  and  State 
and  local  level.  We  find  that  this  is  not  always  the  highest  priority 
in  criminal  justice,  and  that  is  getting  these  records,  following  up 
on  an  arrest  when  a  court  doesn't  report  a  disposition,  et  cetera, 
and  the  entire  burden  falls  upon  the  law  enforcement  agencies  to 
collect  this  data. 

So  to  the  extent  that  we  can  improve  these  systems,  and  we  are; 
to  the  extent  we  can  create  automated  links  from  the  courts  to  the 
State  data  bases  to  add  the  convictions;  to  the  extent  that  we  can 
automate  correctional  information,  prosecutors'  information,  we 
have  made  a  great  deal  of  progress  over  the  years,  then  I  think  we 
need  to  fund  these  initiatives,  particularly  at  the  local  and  State 
level,  to  get  these  complete  records,  because  the  future  of  criminal 
history  record  systems  in  this  country  is  to  focus  on  State  data 
bases  with  the  FBI  playing  a  role  of  a  national  index  for  identifica- 
tion and  then  a  coordinator  of  facilitating  the  flow  of  this  informa- 
tion. So  the  funding  is  a  very  critical  element. 

The  $20  million  certainly  will  not  complete  the  job.  To  the  extent 
that  we  can  find  ways  to  continue  the  flow  of  information,  that  is 
probably  the  most  important  focus  we  could  have. 

Mrs.  Schroeder.  Where  do  you  think  the  information  channel 
breaks  down  the  most  or  is  there  a  better  place  to  place  it?  It  is 
hard  for  the  average  American  to  understand  how  we  can  have 
huge  computers  that  can  process  a  zillion  transactions  in  seconds 
and  yet  we  can't  quite  get  this  done.  Is  it  that  the  law  enforcement 
people  have  not  quite  kept  up  with  the  pace  of  technology,  or  would 
it  be  better  placed  at  the  courts  where  they  are  more  apt  to  have 
clerks  that  are  more  used  to  paperwork?  Do  we  have  it  in  the  right 
place  or  is  it  everybody  is  so  understaffed  that  it  is  the  thing  that 
falls  through? 


27 

How  do  we  make  it  simpler  and  easier;  because  if  it  isn't  any 
good,  it  isn't  worth  spending  the  money  on? 

Mr.  Nemecek.  I  believe  you  have  the  focus  in  the  right  place. 
Some  20  years  ago  when  I  first  became  involved  in  this  issue,  we 
used  to  have  the  concern  that  courts,  corrections,  prosecutors  and 
law  enforcement  all  didn't  do  their  part.  Each  of  these  components 
have  to  do  their  part  and  we  have  to  pull  the  record  information 
together. 

We  seem  to  have  made  a  lot  of  progress  in  breaking  down  those 
barriers,  and  probably  the  State  Identification  Bureau  where  you 
have  the  fingerprint-based  identification,  the  expertise  and  the 
technology  is  the  correct  place  to  locate  it,  and  what  we  have  to  do 
is  to  work  on  these  channels  of  getting  the  other  information — that 
is  other  than  arrest  data. 

We  find  that  we  have  the  majority  of  the  arrest  data.  It  is  the 
conviction  data.  So  it  is  bringing  those  linkages  and  getting  the 
other  agencies  to  pull  it  in.  Frankly,  it  is  an  issue  of  priorities  and 
resources,  and  certainly  it  is  a  tough  issue  these  days. 

Mrs.  Schroeder.  Well,  thank  you  very  much,  Mr.  Chairman.  As 
I  say,  as  you  watch  this,  if  there  are  certain  ideas  you  have  for  how 
we  could  better  draft  the  bill,  other  than  more  money — but  any 
other  things,  we  could  certainly  use  the  input. 

Mr.  Nemecek.  Thank  you  very  much. 

Mr.  Edwards.  Mr.  Canady. 

Mr.  Canady.  I  have  just  a  few  questions. 

About  how  many  employment  and  licensing  checks  do  you  do  in 
an  average  year? 

Mr.  Nemecek.  I  don't  have  the  figure  for  a  year.  The  FBI's  li- 
censing and  employment  checks  vary,  but  approximately  50  percent 
of  all  of  our  inquiries  now  on  our  systems  are  licensing  and  employ- 
ment checks,  which  led  to  us  actually  establishing  the  fee  system, 
because  there  is  such  a  great  increase  in  it.  So  I  would  say  on  a 
given  day,  via  the  submission  of  fingerprint  cards,  I  would  say  per- 
haps 25,000  to  30,000  a  day  at  the  Federal  level.  This  does  not  in- 
clude the  additional  ones  at  the  State  level.  So  there  is  a  signifi- 
cant number  that  are  being  made  and  it  is  increasing  each  year. 

Mr.  Canady.  With  respect  to  that  $23  fee  that  is  charged,  how 
much  of  that  covers  the  actual  costs  of  doing  the  individual  search 
and  how  much  of  that  is  used  to  support  your  automation  efforts? 

Mr.  Nemecek.  I  don't  know  that  I  have  the  exact  figure.  That 
changes  somewhat.  I  believe  about  80  percent  of  its  goes  toward 
just  doing  the  tech  search  and  the  process.  I  think  it  is  approxi- 
mately 20  percent  to  build  this  new  online  system  that  we  are 
working  on. 

Mr.  Canady.  In  your  testimony,  you  have  expressed  concern 
about  records  being  disseminated  to  employers  directly. 

Mr.  Nemecek.  Yes,  sir. 

Mr.  Canady.  Do  you  believe  that  it  is  preferable  that  the  whole 
record  go  to  a  State  regulatory  agency  and  that  the  State  agency 
be  then  in  the  position  to  make  the  judgment  on  what  is  disqualify- 
ing and  what  is  not? 

Mr.  Nemecek.  Yes,  sir,  absent  any  compelling  reason  to  do  other- 
wise, that  is  the  standard  way  that  licensing  employment  checks 
are  done  in  this  country.  It  places  the  review  of  trie  record  in  the 


28 

hands  of  skilled  individuals  that  are  capable  of  interpreting  various 
State's  laws,  determining  what  is  a  conviction,  what  is  not,  and 
then  providing  a  decision  whether  or  not  there  is  a  disqualifying 
basis. 

It  does,  as  I  indicated  in  my  statement,  provide  some  sort  of 
standardization  of  interpreting  the  records  and  ensuring  that  the 
appropriate  decisions  are  made.  An  argument  could  be  made  by 
someone  that  by  seeing  the  actual  record,  they  can  somehow  make 
a  decision  that  deserves  support.  But  generally,  I  don't  see  that 
being  the  case. 

The  regulating  agency's  job  is  to  regulate  and  to  grant  these  li- 
censes, and  I  believe  that  is  the  appropriate  place  for  it. 

Mr.  Canady.  Some  people  have  suggested  that  a  name  check  in- 
stead of  a  fingerprint  check  would  be  adequate  at  least  as  an  initial 
screening  mechanism,  perhaps  to  be  followed  up  by  a  fingerprint 
check.  What  would  be  your  response  to  that  approach? 

Mr.  Nemecek.  I  guess  my  initial  would  be  that  for  those  that  are 
honest  and  always  tell  the  truth,  it  works  just  fine.  To  the  extent 
that  there  is  someone  that  has  something  to  hide,  in  terms  of  their 
identity,  then  we  are  going  to  miss  that  check.  That  is  why  we 
have  always  stressed  the  importance  of  fingerprint  checks  as  being 
the  only  positive  identification. 

Another  way  of  describing  it  is  how  much  of  a  loaf  do  we  want 
when  it  comes  to  protecting  our  children.  It  is  not  the  complete  loaf 
and  it  is  not  the  best  way  to  do  these  checks. 

Mr.  Canady.  You  may  have  touched  on  this  earlier,  but  what  is 
the  current  response  time  for  a  fingerprint  check? 

Mr.  Nemecek.  I  indicated  in  my  statement  that  it  is  approxi- 
mately 2  weeks.  Depending  upon  resources,  personnel,  et  cetera, 
this  sometimes  is  8  to  12  weeks  after  it  arrives  to  the  FBI.  We  find, 
though,  that  from  State  to  State,  these  turnaround  times  vary 
widely,  sometimes  months,  sometimes  days  or  weeks,  but  there  are 
tremendous  disparities  around  the  country,  depending  upon  that 
State  identification  bureau's  ability  to  respond.  Generally  speaking, 
when  the  State  is  charging  a  fee,  they  tend  to  get  pretty  good 
service. 

Mr.  Canady.  That  is  all  the  questions  I  have,  Mr.  Chairman. 

Thank  you  very  much. 

Mr.  Edwards.  Thank  you,  Mr.  Canady. 

I  might  add  that  the  FBI  and  the  Judiciary  Committee  move  in 
this  area  very  reluctantly,  because  the  fingerprint  criminal  history 
system  of  the  FBI  was  designed  for  the  criminal  justice  system  for 
fighting  crime  and  for  sentencing,  and  for  other  very  important 
crime  issues,  and  once  they  get  started  where  civilian  agencies  and 
other  private  organizations  feel  that  they  are  entitled  to  the  crimi- 
nal histories,  it  does  raise  some  real  problems.  So  we  have  been 
guarded,  and  so  has  the  FBI,  in  adding  new  groups  that  can  get 
these  criminal  histories. 

It  has  to  be  a  pretty  darned  important  organization,  with  a  very 
important  need  before  we  look  upon  it  favorably,  and  you  can  see 
what  has  happened.  This  didn't  start  until  just  a  few  years  ago  and 


29 

already  over  half  the  requests  are  for  licensing  and  for  organiza- 
tions such  as  day  care  centers,  banks,  savings  and  loans,  and  peo- 
ple like  that  have  the  privilege  of  getting  this  information  from  the 
FBI. 

But  when  the  issue  is  real,  and  we  think  this  is  a  real  issue,  we 
think  Mrs.  Schroeder  and  the  sponsors  of  this  bill  and  Oprah 
Winfrey  and  others  are  correct,  that  we  can't  let  what  has  been 
going  on  go  on  as  far  as  child  care  centers.  We  move  in  that  direc- 
tion, and  the  FBI  has  been  cooperative,  though  it  is  a  considerable 
additional  burden  to  them. 

I  have  no  questions.  Thank  you  very  much,  Mr.  Nemecek. 

Mr.  Nemecek.  Thank  you,  Mr.  Chairman. 

Mr.  Edwards.  Our  next  witness  is  a  personal  friend  of  the  Hon- 
orable Craig  Washington  of  Houston,  TX,  who  unfortunately  could 
not  be  here  today,  but  he  sends  his  very  best  regards,  Senator.  He 
says  he  wishes  he  could  be  here  and  is  very  pleased  that  your  ex- 
pert testimony  is  being  received  today. 

The  next  witness  is  the  Honorable  Vicki  Miles-LaGrange,  senator 
and  chair  of  the  Oklahoma  Senate  Judiciary  Committee.  She  is  tes- 
tifying for  the  National  Conference  of  State  Legislatures. 

Senator,  welcome. 

Without  objection  your  full  statement  is  a  part  of  the  record,  and 
you  may  proceed. 

STATEMENT  OF  VICKI  MILES-LaGRANGE,  SENATOR,  OKLA- 
HOMA STATE  LEGISLATURE,  AND  CHAIR,  OKLAHOMA  SEN- 
ATE JUDICIARY  COMMITTEE,  ON  BEHALF  OF  THE  NATIONAL 
CONFERENCE  OF  STATE  LEGISLATURES 

Ms.  Miles-LaGrange.  Thank  you  very  much. 

Good  morning.  On  behalf  of  the  National  Conference  of  State 
Legislatures,  and  I  am  here  in  that  capacity  this  morning,  rep- 
resenting that  organization  as  chair  of  the  Law  and  Justice  Com- 
mittee, we  support  the  goal  of  improving  criminal  history  records 
which  are  sought  in  this  bill.  Certainly,  a  nationwide  criminal  his- 
tory background  check  we  believe  can  be  very  useful  in  the  field 
of  child  care,  as  well  as  in  other  areas. 

I  would  like  to  just  mention  that  I  guess  I  am  particularly  sen- 
sitive to  this  area  myself,  personally.  Before  serving  in  the  legisla- 
ture, I  served  as  a  State  prosecutor  and  saw  firsthand  the  very 
frightening  toll  that  abuse  exacts  from  our  Nation's  children. 

Let  me  speak  very  briefly  to  a  cost  issue  that  is  a  concern  of 
NCSL.  We  believe  that  the  cost  of  improving  automation  and  dis- 
position rate  of  the  State  criminal  history  records  is  not  calculated 
and  may  not  be  accurately  reflected  by  the  set-aside  in  the  Byrne 
Memorial  Fund  and  the  additional  $20  million  which  is  in  your  bill. 
Certainly,  the  omnibus  crime  bill,  the  last  session,  authorized  $100 
million  annually  to  accomplish  many  of  the  same  objectives. 

The  bill  reiterates  the  availability  of  funding  under  the  drug  con- 
trol system  improvement  grants  and  it  offers  this  $20  million  for 
automation.  I  don't  know  if  it  is  really  clear  from  the  bill  that  the 
amounts  through  the  set-asides  and  the  additional  grants  were  cho- 
sen based  upon  very  specific  cost  estimates,  showing  the  actual  cost 
that  a  particular  State  might  face  over  the  next  3  years  to  actually 
comply  with  the  mandate. 


Qn-finQ  n  -  qa  -  o 


30 

One  idea  of  those  costs,  just  looking  at  my  own  State,  the  State 
of  Oklahoma,  where  the  estimate  to  actually  consolidate  criminal 
history  records  and  bring  them  online  in  the  automated  fingerprint 
identification  system  would  have  a  cost  of  $5.8  million  over  a  3- 
year  period.  The  State  of  Oklahoma  is  currently  under  the  80-per- 
cent disposition  which  is  required  in  the  bill,  but  we  certainly  hope 
to  improve  very  quickly  and  we  are  certainly  working  in  that 
direction. 

Under  the  criminal  history  records  improvement  program,  the 
State  of  Oklahoma  has  received  another  $176,000  for  July  1992, 
through  June  1994,  to  improve  the  accuracy,  the  completeness  and 
the  timeliness  of  our  records.  Just  by  comparison,  some  of  the  other 
States  have  much  further  to  go  in  their  process,  and  although  we 
are  unable  at  this  hearing  to  really  provide  estimates,  the  National 
Conference  of  State  Legislatures  is  certainly  willing  to  work  with 
the  committee  to  try  to  obtain  more  accurate  estimates  of  real  po- 
tential cost  to  comply  with  the  bill. 

We  believe  that  criminal  history  background  checks  certainly  can 
be  useful,  but  it  is  also  the  position  of  NCSL  that  the  criminal  his- 
tory background  checks  are  still  only  a  part  of  what  both  the  Fed- 
eral and  State  governments  must  do  to  ensure  safe  environments 
for  our  children.  We  strongly  support  this  measure,  and  believe 
that  there  are  excellent  benefits  to  be  derived.  At  the  same  time, 
we  hope  that  we  don't  create  any  unrealistic  expectations  about  the 
benefits  to  be  derived  from  a  nationwide  criminal  history  back- 
ground check,  expecting  too  much,  if  you  will. 

I  guess  the  whole  tragedy  of  the  child  sexual  abuse  area  that  cer- 
tainly this  bill  seeks  to  address,  and  addresses  very  effectively,  is 
that  until  we  continue  to  concentrate  very  serious  resources  at  both 
the  State  and  the  national  level  on  child  abuse  prevention,  we  all 
are  just  only  going  to  be  scratching  the  surface,  and  in  that  respect, 
our  organization  supports  the  goals  of  the  Child  Abuse  Prevention 
and  Treatment  Act.  We  hope  that  the  Federal  Government  will 
continue  its  commitment  to  confronting  and  preventing  this  na- 
tional disgrace. 

As  I  mentioned  earlier,  Oklahoma,  among  many  other  States, 
has  adopted  mandatory  fingerprints  checks  for  some  in  the  child 
care  system,  and  I  have  for  your  perusal  a  State  by  State  grid  of 
those  States  adopting  criminal  history  background  checks  and  who 
has  access  to  those  records. 

Mr.  Edwards.  That  will  be  made  a  part  of  the  record  also. 

[The  information  follows:] 


31 


STATE  CRIMINAL  HISTORY 

BACKGROUND  CHECK  LAWS 

(through  December  31,  1992) 


Thi»  Uble  wit  copyrighted  in  1993  by  the  National  Center  for  Miumg  and  Exploited  Children,  Arlington,  Virginii,  USA  and 
reprinted  from  Selected  Slate  Legislation:    A  Guide  for  Effective  La»i  i.>  Pirtc.t  Children  with  permission.    All  right*  reserved. 


32 


STATE  CRIMINAL  HISTORY  BACKGROUND  CHECK  LAWS 
(through  December  31,  1992) 


SMC 

Daycare 

— 

Foster  Care  and 
Residential  Facilities 

Other  Organizations  or 
Individuals 

Alabama 

(26-20-1  T.V 

(26-20-1   T.V 

(26-20-1  T.V 

(26-20-1  T.V 

public  or  private  child  cart 

public  or  private  residenuaJ 

anv  organization  providing        i, 

center  or  child  care  home 

facility,  intermediate  or 
long-term  care  facility, 
correctional  or  detention 
facility 

service*  to  children  ma> 
request 

ji 

Alaska 

112-3-2-18   E 

(12-3-2-18    E 

(12.62.035   E.V 

112-3-2-19  L 

(12-3-2-18    L 

anv  o ream/anon  providing 

child  care  center  or  home 

foster  home  or  residenuaJ 
facility 

services  to  children  ma> 
request 

\nzonm 

§33-883  02  child  care  center 

(28-11401    B 

(41-1750  adoptive  parents 

(41-1750   E.V 

personnel 

(15-512    (15-534 

or  custodians 

any  organization  providing        i 

$33-883.03  child  care  home 

(15-1380   E.V 

(41-2814    E.V 

services  to  children  may 

personnel. 

state  secure  care  facility 

(14-160602    E 

state  correctional  facility. 

request 

(8-20301  state  probation 

officers 

(8-230  02   (46-141    ail  state 

personnel  paid  or  volunteer 

providing  service  directly  to 

juveniles. 

Arkansas 

(12-12.211  criminal  hisiorv 
informauon  made  available 
only  to  criminal  justice 
agencies  and  regulatory 
agencies  with  specific 
statuiorv  access 

California 

Health  and  Safetv  Code 

Education  Code  (44332  5 

Penal  Code  (11105.3   L.T.V 

(1596.871    L.E 

certified  public  school 

Human  Resource  Agencv. 

daycare  facility 

employees. 

Vehicle  Code  (13376    B 
Education  Code  (44237  E 
private  schools. 

nonprofit  organization,  or 
other  organization  tpccified 
by  Attorney  General  mav 
request 

I 

Colorado 

§26-6-107 

119.1  (Ml 5  residenuaJ 

(19-10-115  day  camp  mav 

child  care  centers. 

lacilil?  may  request  for 

require  for  emplovment 

pre  schools. 

emplov  ment . 

(26-6-107  Dept   ma>  require 

Dept.  may  require  licensee 

for  licensee 

to  obtain. 

(19-10-115  child  care  center 

may  require  for 

employment. 

Connecticut 

(54-I42K  Dept  of  Human 

(14-44  8 

1*4-142  Dept  of  Children 

(54-I42K   convicuon 

Resources  may  request  for 

and  >  ouih  may  request  on 

informauon  available  to 

child  care  center  or  home 

k>»rme  or  lostcr  parents. 

public:  any  organization 

licensee. 

providing  services  to 
children  may  request. 

KEY 

B  »  bus  drivers 

E  *  all  employees  who  have  direct  contact  with  children 
L  ■  licensed  owner,  operator,  or  administrator  of  a  facility, 
home,  or  organization  providing  services  io  children 


O  =    4hrr\  «»*•  hjve  j*.- cess  to  children  tn  care 
T  =  ie*,net*  •  *  rrrvmnel  with  supervisory  control 
V  =   -   .lunterrs 


33 


SUM 

Daycare 

_ 

Foster  Care  aad                    I    Other  Orgaautauons  or 

Residential  Facilities                |    Individuals 

Delaware 

1309   E.V 

residemial  care  facility. 

adoptive  and  foster  parents 

. 
p 
1 

i 

District  of 

Columbia 

Title  5  Chapter  10  DC 

Municipal  Regulations    E 

I 
i 

i 

| 

Florida 

&4023055   IM02.3I3 

LEO 

child  care  centers  and 

homes 

5231  17   T 
certified  personnel. 

1393.0655   J409I75   E.V 
residenual  facilities  and 
foster  homes 

♦409  1 75   E.V 

summer  day  camps 

Georgia 

*4<J-5-*2   LE 

child  care  center?  and 

homes 

449-5-1 II  T 

political  subdivision  may 

require. 

f49-5-62   L.E 

child  care  institutions. 

♦49-5-11    T 

any  organization  providing 

services  10  children  may 

require 

Hawaii 

$346-151  ft  leq    L.E 
child  care  centers  and 
homes 

Dept  of  Education 
Personnel  Policy  Regulation 

4346-17   LE 
foster  homes. 

1352-5.5   stall  members  of      1 
youth  correctional  facilities 

i 

1 

i 

Idaho 

539-1105   L.E.V 

child  care  centers  and 
homes 

1 
i 

Illinois 

Ch.  23  para.  2214  1    L.E 
child  care  centers  and 
homes 

Ch.  122  para.  34-185   E 
Ch.  122  para.  10-21°     E 
Ch.  95  1/2  para.  6-106  1    B 

Ch   127  para.  55a   any 
organization  providing 
services  to  children  may 
request 

Indiana 

J1M7J-J-J   L 
child  care  center 
5IM"  5-5-3   L 
child  care  home 
S5-2-5-5   E.V 
child  care  center  or  home 
operator  may  request 

i 
i 
1 

i 
1 

KEY 

B  =  bus  drivers 

E  x  all  employees  who  have  direct  contact  with  children 
L  =  licensed  owner,  operator,  or  administrator  of  a  facility, 
home,  or  organization  providing  services  to  children 


O  s  .<ih«T\  *rn.  have  access  to  children  in  care 
T  =  leja-her-.  .»r  personnel  with  supervisory  control 
V  =  t.Huniecrs 


34 


State 

! 

Daycare 

Schools                                         Foster  Care  and 

|    Residential  Facilities 

Other  Organizations  or 
Individual* 

Iowa 

$237A5    L.E.O 
child  care  faciliry 

1237.8   L.E.O 

foster  care  facility 
II25H.7    LEO 
medicaJ  msuuition  for 
children 

»w:.:  e.v 

youth  service  agency 
approved  bv  Commmioner 
of  Public  Safety,  may 
request 

Kansas 

*65-5lh   E.V.O 
child  care  home 

$65-516   E.V.O 

boarding  home  for  children 

1 

1 

1 

i 

Kentucky 

§17-165    T 
child  care  centers 

5160  380   T 
public  schools 

$17,160   T 

any  organization  providing 

services  to  children  may 

request 

Louisiana 

$46:51  :   TV 

child  can:  centers  or  homes 

117:15   E.B 

$15:825.3   L.E 

juvenile  detention 

correction,  or  treatment 

facility 

$46  51  2    LXO 

foster  home. 

1 
$15  587  1    T 

any  organization  providing 

services  to  children  ma> 

request 

$46:51  2   TV 

any  organization  thai  Oept 

of  Public  Welfare  determines 

has  authority  over  children 

nuv  request 

i 

Maine 

1 

Tit.  22  98301    L.O 
child  care  homes 

Tit.  16  $615  convicuon             |j 
informauon  available  to  the 
public 

Maryland 

1 
i 

FL  1.5-561    L.E   child  care 

centers 

V   child  care  centers  may 

require 

L.E.O  child  care  homes 

FL  §5-561    E    public  and 
private  schools 
V    public  and  private 
schools  may  require 

FL  $5-561    L.E  child  care 

institutions 

V   child  care  institutions 

may  require 

L.E.O  foster  homes 

il 

FL  55-561    E   an> 

organization  providing 

services  to  children  may 

require 

L.E   sute  recreation  centers 

and  day  or  overnight  camps 

V    state  recreauon  centers 

and  day  or  overnight  camps       ; 

may  require. 

il 

.     Massachusetts 

1 
| 

102  CMR  7  00   L 
child  care  centers. 

Ch    *>  08A    B 

il 

i 

1 

Michigan 

i 

Hi  :49i|3i  all  persons  in 
house    McCrutf  House 

Minnesota 

S245A03    L.E.O 
child  care  ceniers  and 
homes 

J245A03    L.E.V.O                      S245A.03     LX.V.O 

public  and  private  schools       j    residential  facilities. 

I245A.03   LE.V.O 

recreation  programs 

I 

KEY 

B  =  bus  drivers 

E  =  all  employees  who  have  direct  contact  with  children 
L  =  licensed  owner,  operator  or  administrator  ol  a  taciltry. 
home,  or  organization  providing  services  to  children 


O  s    •inm  »*.>  njve  access  to  children  in  care 
T  =  iejk nen.  ••*  personnel  with  supervisory  control 
\   =  wiunteerv 


35 


Sum 

Daycare 

Schools 

Foster  Care  and 

Residential  Facilities 

Other  Omaniiai ions  or 
ladividiiab 

Mississippi 

♦43-20-8   L.E 
child  care  centers 

(4!-:0-S    LEO 
child  care  homes 

§45.31-1  «ie«    E.V 
any  unit  of  gov  thai  renders 
services  to  children  may 
request 

$45-31-1  ttttq,    E.V 

an  authorized  business, 
nonprofit  or  volunteer 
organization,  and  any  unit 
of  gov  that  provides 
services  to  children  may 
request. 

445-31-1  et  teq.  an 
authorized  business, 
nonprofit  or  volunteer 
organization,  and  any  unit  ot 
gov   that  provides  services 
io  children  may  request 

Missouri 

H3540   E.V 

child  care  centers  or  homes 

may  request. 

J43  540  E.V 

public  or  private  school  may 

request 

443.540   E.V 

foster  care  home  may 
request 

443-540   E.V 
an>  association  which 
provides  services  to  children 
may  request 

Montana 

I 

1 

Nebraska 

571-1903     LE.O 
Dept.  of  Public  Health  and 
Safety  may  require  for  early 
childhood  programs 

Nebraska  Dept.  of 
Education  Rule  *9I 
004.0  IF 

recommended  for  bus 
driven. 

§71-1902   LE.O   Dept.  of 
Public  Health  and  Safery 
may  conduct  for  foster 
homes 

t 

Nevada 

H32A.I70  LX.V.O 
child  care  facility. 

JI79A200   E 
gov.  agency  or  political 
subdivision  may  request 
1391033  T 
$391,100   E 

4424.031    LI.O 
foster  homes. 

J179A200   E 

person  providing  services  to 
children  may  request 
II70A.I75    L.E.V.O 
outdoor  south  program 

New 

Hampshire 

II70-E7   E 

child  care  centers  and 

homes. 

4170-E29   E 

foster  homes  and  residential 

facilities. 

New  Jersey 

PL.  1991  ch.  278  LE.O 
family  daycare  homes. 

|l8A:6-il3    E 
nonpublic  school  may 
require. 

II8A390I7   B 
J18A6-7I    EB 
public  schools. 

New  Mexico 

J32-9-J   LE 
child  care  facilities. 

128-2-3   E 

state  or  any  political 

subdivision  may  require. 

432-9-3   L.E  juvenile 
detention,  correction,  or 
treatment  facilities 
528-2-3   E 

viate  or  political  subdivision 
mj\  require. 

KEY 

B  =  bus  drivers 

E  3  all  employees  who  have  direct  contact  with  children 
L  ■  licensed  owner,  operator,  or  administrator  of  a  facility, 
home,  or  organization  providing  services  to  children 


O  =  others  *n«<  have  access  to  children  in  care 
T  =  iej»,her\  or  personnel  with  supervisory  control 
V  =  vntunieers 


36 


z 


Hatbrmaat  Facaaaaat 


Otarr  OrnauMMM  ar 
Indxidaub 


Social  Services  Code  M>j 
LXV 


Vehicle  an 
»SO»-d   ■ 


I  T."    . 


Social  Services  i.xx 
lower  homes  and  aoocmr 


Social  Services  Ccoc  M24-i 
L.E-*  camp> 


tllO-UO  I 

child  care  centers  and 


♦JO-ll  i-OJ   LE.0 


(»l!   I-0a:    lisunt  in 
child  care  rerisirv  n 
loawir.     *.n\  person  mav 
venrv  it  a  care  provider  b 
■Baal 


I    I5ICU09    LE 
OHM  C  it  GH  HH 
4510*  09   LE.O 
dkld  care  nomev 


Tu   10  *404  l    E 

CHI     EMI     DBWL  '    v"  »  "V     "~J  > 


Tit  ?0  I5-U2    E 

rocaj  Board  of  Educanoa 

-j  •  request 


Tu   10  H04  l    E 
rrsioeticiAi  child  care 
racit.rt 


WIS  820   Lt\0 
rru\  be  required  lor  child 


§242-550   may  be  required 
for  cusaoduos  «  pubiK 
nook 


H1S82C    LE 
juvenile  deaesoon. 
ciMiCLUon.  or  creatmeni 
facility 

(181  537    ma*  be  required 
for  adoptive  parent*,  rosier 
care  homes,  or  state 
residential  taci  lines 


?rr.  Mil  1 


Ttr.  23  M>.U4    E 


Til  24  Jl-Ill    E 

PuMk  and  private  schocJv 


T,i  I?  *6.U4 

toster  care  homes  and 

adoptive  parents 


T I  ;.•  w.vu   E 

anv  ortaruzauon  providing 

services  to  children 


MO-13-22   LE 
child  a 


jlo-48-2  pnvaar  schcoii 


Saath  Carotaaa 


130-7-rTJO   LE 
ejl  ■  cat.  cer-c-s  1.1: 


IW-26-40   T 
public  schools 


Saath  Dakota  126-0-149   LXO 

child  can  home  mas 
request- 


KEY 

8  *  bus  drivers 

E  x  ail  empsovees  who  have  direct  contact  »iih  children 
L  =  licensed  owner,  operator-  or  admimsiraior  of  a  tacilirv. 
home,  or  orearuzaoon  providint  services  to  children 


;>  =  aai 
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•  •  »  personnel  »ith  supervisory  control 


37 


Stat* 


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Human  Resources  Code 
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puonc  schools 

111.064    E 

School  for  the  Blind 

§  1 1  J>33   E 

School  for  the  Deaf 


Human  Resources  Code 
62:  006  fouer  homes  and 

adoptive  parents  ma - 
request 


Human  Resource-  Cuue 

*80  00  *  tool  ia* 
enforcement  mav  obtain  on 
rtesffhoornood  child  *atcn 
program  parucipanu  and  on 
VicGruff  H  Aj-rf  resident* 
122-006   ma>  require  lor 
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Providers,  and  cour- 
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»63  1-198  LO 
child  care  centers  and 


♦63  1-198  1    E 

licensed  child  care  centers 

and  homes 

♦63  1-198  2    E.V 

unlicensed  facility  may 

■fM 

163  1-196  04    voiumarv 

registration  of  small  family 

davcare  homes 


122  1-296  2   E 


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foster  homes  and  adopuvt 


Washington 


f*3  4?830   E.V 
child  care  centers  and 


443  43  830   noncerufied 

personnel 

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responsible  for  supervisi 
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449-2B-8    U£ 
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155  06   L 

child  care  centers  i 


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day  camps 


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•*-     *  %    *j*r  access  to  children  in  care 
rat*rr*  <n  rr«-«inel  with  swrjernsors  control 


38 

Ms.  Miles-LaGrange.  I  would  like  to  make  just  another  com- 
ment and  then  I  will  wind  up  and  will  be  happy  to  try  to  respond 
to  questions. 

I  mentioned  those  additional  things  that  are  going  to  be  abso- 
lutely necessary  if  we  are  going  to  ever  really  effectively  squelch 
chila  abuse  across  this  Nation.  In  Oklahoma,  we  have  taken  a 
number  of  steps  that  actually  parallel  the  goals  of  the  National 
Child  Protection  Act. 

For  example,  applicants  for  family  day  care  are  checked  against 
the  department  of  human  services  child  abuse  registry.  Then  there 
are  four  references  required  for  staff  and  day  care  centers.  Then 
staff  and  centers  must  have  training  on  the  mandatory  reporting 
of  child  abuse.  Then  parents  are  additionally  informed  through  an- 
other publication  on  how  to  detect  and  report  suspected  abuse  and 
parents  are  encouraged  to  examine  the  child  care  provider's  licens- 
ing files,  which  are  open  records. 

As  I  mentioned,  we  have  recently  amended  our  law  there  to  man- 
date criminal  background  checks  for  applicants  for  employment  in 
both  day  care  centers  and  family  day  care  homes.  And  that  back- 
ground check  may  include  a  search  of  the  department  of  corrections 
sex  offender  registration  file,  and  currently  those  checks  are  by 
name. 

Teachers  can  undergo  a  national  fingerprint  check  through  the 
FBI.  However,  the  records  from  the  FBI  that  our  State  currently 
relies  on  for  checks  may  only  have  a  50-  to  60-percent  disposition, 
because,  for  the  most  part,  tne  States  must  submit  the  information 
to  the  bureau  before  a  disposition  can  be  made. 

We  are  very  encouraged  by  both  the  spirit  and  the  intent  of  H.R. 
1237,  and  I  cautiously  say  that  by  targeting  only  a  fraction  of  the 
problem  of  child  abuse,  we  don't  want  to  risk  over  promising,  be- 
cause even  at  the  target  of  80  percent,  final  disposition  in  this  bill, 
as  we  all  know,  that  remaining  20  percent  would  pose  a  risk.  But 
more  importantly,  I  think  it  is  crucial  to  bear  in  mind  that  many 
of  those  who  will  abuse  children  do  not  necessarily  have  prior 
criminal  records. 

In  closing,  I  would  say  that  we  applaud  the  fact  that  the  use  of 
background  checks  for  noncriminal  justice  purposes  is  permissive. 
Certainly  the  bill  creates  requirements  in  the  language  of  the  pro- 
posed guidelines  that  in  at  least  some  instances  may  hinder  the 
flexibility  of  States  to  respond  to  their  particular  needs. 

With  that,  I  will  stop  and  try  to  respond  to  questions. 

Mr.  Edwards.  Well,  thank  you,  Senator.  That  was  a  very  helpful 
statement. 

[The  prepared  statement  of  Ms.  Miles-LaGrange  follows:] 

Prepared  Statement  of  Vicki  Miles-LaGrange,  Senator,  Oklahoma  State  Leg- 
islature, and  Chair,  Oklahoma  Senate  Judiciary  Committee,  on  Behalf  of 
the  National  Conference  of  State  Legislatures 

Good  morning.  My  name  is  Vicki  Miles-LaGrange.  I  am  the  Chair  of  the  Okla- 
homa Senate  Judiciary  Committee.  Before  serving  in  the  legislature,  I  served  as  a 
state  prosecutor  and  saw  first  hand  the  frightening  toll  that  abuse  exacts  from  our 
nation's  children.  These  experiences  have  come  together  in  my  service  as  a  member 
of  the  Oklahoma  Senate.  Since  elected  in  1986,  I  have  sponsored  a  variety  of  bills 
aimed  at  improving  the  safety  of  our  children.  This  year  we  made  mandatory  the 
requirement  that  criminal  investigations  be  conducted  for  certain  personnel  in  the 
child  care  setting. 


39 

I  come  before  you  on  behalf  of  the  National  Conference  of  State  Legislatures, 
where  I  serve  as  chair  of  the  Law  and  Justice  Committee.  My  purpose  here  today 
is  to  bring  my  experience  as  a  legislator  and  the  perspective  of  my  colleagues  to 
offer  insights  and  raise  questions  about  H.R.  1237,  "The  National  Child  Protection 
Act  of  1993." 

The  bill  that  is  the  subject  of  this  hearing  contains  ideas  that  have  circulated  for 
a  decade.  Background  checks  are  seen  as  one  way  to  reduce  the  risk  that  dangerous 
persons  will  volunteer  or  be  hired  to  work  with  children  away  from  home.  Mean- 
while, states  have  been  active  in  implementing  some  of  the  ideas  in  the  bill.  State 
responses  have  varied,  though,  from  requiring  fingerprint-based  background  checks 
for  a  broad  variety  of  persons  in  contact  with  children,  to  voluntary  name  based 
checks  for  a  limited  pool  of  applicants.  The  trend  is  toward  expanding  the  use  of 
background  checks. 

In  our  testimony,  we  first  raise  questions  about  the  scope  of  the  mandate  and  the 
adequacy  of  the  funding  authorized  under  this  bill.  We  then  stress  that  parts  of  the 
bill  that  are  intended  to  be  permissive  should  avoid  hidden  mandates  that  are  not 
necessary  to  further  the  purposes  of  the  bill.  I  will  share  some  of  my  experiences 
in  Oklahoma  to  explain  how  we  are  responding  to  some  of  the  needs  of  our  children. 
We  believe  that  the  common  interest  in  creating  a  national  network  to  share  infor- 
mation is  consistent  with  federalism,  but  that  states  should  retain  authority  over 
the  use  of  information  within  their  borders.  Sketches  of  the  actions  of  several  states 
will  bear  out  the  distinction  between  national  interest  and  state  interest.  Finally, 
we  will  offer  a  few  suggestions  section  by  section  to  assist  the  committee  in  crafting 
legislation  that  respects  the  ability  of  states  to  be  responsive  to  their  constituencies. 

MANDATES  AND  FUNDING 

This  bill  reinforces  the  trend  by  states  to  use  criminal  history  data  to  reduce  risks 
to  children  cared  for  out  of  the  home.  The  method  of  reinforcement  is  to  mandate 
that  states  create  criminal  history  data  bases  that  are  at  least  80  percent  accurate 
in  showing  the  final  disposition  of  cases  for  persons  arrested.  The  bill  also  encour- 
ages automation  of  criminal  history  records  and  develops  guidelines  for  states  to  use 
in  processing  nationwide  criminal  history  background  checks  for  non-criminal  jus- 
tice purpose  relating  to  the  out-of-home  care  of  children. 

Improved  national  criminal  background  checks  can  have  significant  benefits  in 
law  enforcement.  By  providing  an  impetus  for  the  improvement  of  state  records,  this 
bill  serves  a  useful  purpose.  And,  states  will  see  the  benefit  in  expanding  the  net- 
work of  cooperation  by  tracking  child  abusers  that  move  from  state  to  state  to  avoid 
detection. 

These  laudable  goals  should  become  national  policy,  however,  only  after  the  na- 
tional government  expresses  its  commitment  with  satisfactory  and  stable  funding. 
In  order  for  sound  policy  to  emanate  from  Washington,  much  greater  attention 
needs  to  be  given  to  the  costs  that  will  be  passed  to  the  taxpayer.  NCSL  has  led 
the  way  in  educating  Congress  and  the  public  about  the  perils  of  unfunded  man- 
dates. Mandates  cause  civic  impairment  by  separating  decisions  to  spend  from  deci- 
sions to  tax.  Citizens  are  uncertain  which  level  of  government  to  reward  or  blame, 
and  accountability  in  government  suffers. 

This  bill  does  offer  some  funding.  However,  if  the  level  of  funding  is  reflective  of 
the  commitment  of  the  federal  government  to  seeing  the  nationwide  check  become 
a  reality,  we  remain  skeptical  that  this  will  be  a  true  partnership.  We  urge  the  com- 
mittee to  confirm  the  national  commitment  to  the  success  of  the  program  by  making 
the  mandate  effective  only  upon  full  appropriation  of  an  adequate  level  of  funding. 

The  bill  reiterates  the  availability  of  funding  under  the  drug  control  system  im- 

Brovement  grants,  and  offers  an  additional  $20  million  in  funding  for  automation. 
Unfortunately,  it  is  not  clear  from  the  bill  that  the  amounts  through  the  set  aside 
and  the  additional  grants  were  chosen  based  upon  specific  cost  estimates  showing 
the  actual  cost  states  would  face  over  the  next  three  years  to  comply  with  the  man- 
date. One  idea  of  those  costs  may  come  from  my  own  state,  where  it  is  estimated 
that  to  consolidate  criminal  history  records  and  bring  them  on-line  in  an  automated 
fingerprint  identification  system  (AFIS)  will  have  cost  $5.8  million  over  3  years.  We 
are  currently  under  80  percent  disposition  but  hope  to  improve  quickly.  Under  the 
Criminal  History  Records  Improvements  Programs  (CHIRP)  we  have  received 
$176,500  for  July  1992  through  June  1994  to  improve  the  accuracy,  completeness 
and  timeliness  of  our  records.  Other  states  have  farther  to  go.  Although  we  are  un- 
able at  this  hearing  to  provide  estimates,  we  would  be  willing  to  work  with  the  com- 
mittee to  try  to  obtain  a  more  accurate  estimate  of  potential  costs. 

The  uncertain  federal  commitment  in  H.R.  1237  is  also  suggested  by  the  amount 
authorized  for  similar  purposes  in  H.R.  3371,  the  Omnibus  Crime  Control  Act  of 


40 

1991,  which  did  not  become  law.  Section  503  would  have  authorized  $100  million 
for  fiscal  year  1992  and  all  fiscal  years  thereafter.  Under  Title  V  of  the  1991  crime 
bill,  the  federal  government  authorized  the  funds  in  order  to  permit  nationwide 
background  checks  for  persons  seeking  to  purchase  firearms.  Although  the  users  of 
the  system  are  certainly  different  than  those  proposed  in  H.R.  3371,  the  goal  of  im- 
proving state  criminal  history  records  to  make  nationwide  background  checks  fea- 
sible was  similar.  Language  of  H.R. 1237  echoes  much  of  the  language  creating  the 
national  criminal  background  check  system  in  Title  V  of  that  crime  bill. 

Another  part  of  the  federal  commitment  has  been  the  continuous  effort  of  the  Fed- 
eral Bureau  of  Investigation  to  develop  the  Interstate  Identification  Index.  This  20- 
year  effort  to  enhance  cooperation  between  states  and  the  FBI  has  moved  to  the 
stage  where  the  Attorney  General  is  reviewing  a  compact  that  will  regulate  com- 
prehensively the  use  of  criminal  history  records  for  non-criminal  justice  purposes. 
While  developing  a  system  for  the  purposes  of  non-criminal  justice  background 
checks,  we  should  see  how  the  needs  of  child  care  providers  can  be  integrated  into 
the  Interstate  Identification  Index. 

NCSL  normally  objects  to  set  aside  programs  in  grants  that  are  intended  to  give 
states  flexibility  in  developing  individualized  responses.  The  drug  control  system  im- 

firovement  grants  are  such  funds.  A  case  can  be  made  that  the  set-aside  here  is 
inked  to  the  development  of  a  national  program  that  requires  significant  levels  of 
uniformity  in  order  to  be  successful.  However,  the  problem  with  earmarking  is  that 
it  assumes  uniform  needs,  and  while  states  all  need  assistance,  their  needs  are  not 
uniform. 

The  bill  would  withhold  funds  from  states  that  are  not  able  to  meet  guidelines. 
This  provision  should  be  considered  cautiously,  not  automatically,  as  it  may  have 
unintended  consequences.  States  are  ultimately  responsible  for  fulfilling  all  obliga- 
tions, yet  the  individuals  responsible  for  compliance  here  may  be  jeopardizing  pro- 
grams funded  with  the  Byrne  grants  that  are  not  delinquent  or  responsible  for  the 
delay.  Congress  has  authorized  funds  in  the  past  for  improvement  of  criminal  his- 
tory records,  and  then  removed  the  support.  Senator  DeConcini  and  Congressman 
George  Miller  sponsored  legislation  in  1984  to  appropriate  $25  million  to  encourage 
states  to  require  national  background  checks,  but  the  next  year  funding  was 
dropped.  In  other  programs,  Congress  has  decreased  funding  for  automation  by  re- 
defining the  expenditure  as  an  administrative  cost.  We  therefore  caution  that  uncer- 
tain financial  commitment  can  jeopardize  implementation. 

We  believe  that  the  imperative  of  stable  funding  from  the  national  government 
must  be  met  with  responsible  and  ready  cooperation  from  the  states.  It  is  essential 
to  the  process  of  state  funding  that  state  legislators  become  better  informed  about 
the  nature  of  the  program  and  existence  of  the  federal  commitment. 

FLEXIBLE  STATE  REGULATION 

We  are  encouraged  by  the  fact  that  the  bill  has  not  attempted  to  mandate  uniform 
requirements  regarding  who  may  request  records  checks.  The  language  of  Section 
3 — "A  State  may  have  in  effect  procedures  to  permit" — thankfully  allows  states  the 
option  of  determining  what  organizations  will  have  access  to  criminal  history 
records.  However,  the  specificity  of  the  guidelines  set  out  in  the  bill  may  be  unneces- 
sary to  accomplish  its  goals.  Because  background  checks  are  not  a  cure-all,  it  is  even 
more  important  that  states  retain  flexibility  in  determining  priorities  even  after 
records  are  improved. 

The  federal  government  must  consistently  give  states  the  tools  for  children's  safe- 
ty and  maintain  this  commitment  through  the  appropriations  and  regulatory  proc- 
esses. Under  federal  child  care  legislation  passed  in  1990,  states  retain  the  author- 
ity to  regulate  child  care. 

However,  during  the  regulatory  process,  restrictions  were  placed  on  the  ability  of 
states  to  impose  additional  requirements,  such  as  background  checks,  on  unlicensed 
and  unregulated  providers.  In  September  1991,  my  colleague  from  Oklahoma,  State 
Senator  Bernest  Cain  appeared  before  the  House  Ways  and  Means  Subcommittee 
on  Human  Resources  to  protest  regulations  that  made  national  administrative  pref- 
erences for  "parental  choice"  the  predominant  factor  in  state  regulation  of  child  care. 
According  to  Senator  Cain,  who  testified  on  behalf  of  NCSL,  "Current  state  safety 
requirements  such  as  fire  extinguishers,  smoke  detectors,  criminal  background 
checks,  tuberculosis  tests,  and  safety  inspections  may  all  be  jeopardized."  This  bill 
should  reaffirm  that  states  retain  the  right  to  authorize  criminal  background  checks 
where  needed. 

States  that  have  provided  statutes  to  the  FBI  for  92-544  clearance  permit  some 
disclosure.  Some  states,  however,  have  a  greater  sensitivity  to  issues  of  privacy  than 


41 

others.  Under  the  Constitution,  they  are  permitted  to  enhance  those  individual  pro- 
tections. This  legislation  should  studiously  avoid  allowing  regulatory  preemption  of 
state  privacy  laws.  States  have  legitimate  reasons  to  respond  to  constituencies  that 
demand  privacy  rights  or  fear  discrimination,  and  thus  limit  the  disclosure  of  their 
criminal  history  records  for  non-criminal  justice  purposes. 

Another  reason  for  leaving  states  with  flexibility  is  that  the  use  of  criminal  his- 
tory background  checks  is  only  a  narrow  part  of  the  solution  to  providing  quality 
care  for  children.  We  should  not  set  ourselves  up  for  disappointment  by  expecting 
too  much  of  criminal  history  records.  Unfortunately,  the  tragedy  of  child  sexual 
abuse  that  this  bill  seeks  to  address  will  continue  unless  we  concentrate  serious  re- 
sources at  the  state  and  national  level  on  child  abuse  prevention.  The  National  Con- 
ference of  State  Legislatures  supports  the  goals  of  the  Child  Abuse  Prevention  and 
Treatment  Act  and  believes  that  the  federal  government  should  renew  and  expand 
its  commitment  to  confronting  and  preventing  this  national  disgrace. 

LESSONS  FROM  OKLAHOMA 

In  Oklahoma,  we  have  taken  a  number  of  steps  that  parallel  the  goals  of  the  Na- 
tional Child  Protection  Act.  Applicants  for  family  day  care  are  checked  against  the 
Department  of  Human  Services  child  abuse  registry.  Four  references  are  required 
for  staff  in  day  care  centers.  Staff  in  centers  must  have  training  on  the  mandatory 
reporting  of  child  abuse.  Parents  are  informed  through  a  publication  on  how  to  de- 
tect and  report  suspected  abuse.  Parents  are  also  encouraged  to  examine  the  child 
care  provider's  licensing  files,  which  are  open  records. 

We  also  recently  amended  our  law  to  mandate  criminal  background  checks  of  ap- 
plicants for  employment  in  day  care  centers  or  family  day  care  homes.  The  back- 
ground check  may  include  a  search  of  the  Department  of  Corrections  sex  offender 
registration  files.  As  yet,  these  checks  are  by  name.  Teachers  can  undergo  a  na- 
tional fingerprint  check  through  the  FBI.  The  benefit  of  the  name  check  is  that  it 
is  less  costly  and  more  timely  than  a  check  through  the  FBI,  which  can  take  weeks 
or  months.  The  records  from  the  FBI  that  we  now  rely  on  for  checks  may  have  only 
a  50-60  percent  disposition,  because  for  the  most  part  the  FBI  must  rely  on  states 
to  report  the  dispositions. 

Thus,  we  should  be  wary  of  expecting  too  much  from  H.R.1237.  By  targeting  only 
a  fraction  of  the  problem  of  chila  abuse,  we  risk  overpromising.  Even  at  the  target 
of  80  percent  final  disposition  in  this  bill,  the  remaining  20  percent  would  pose  risk. 
But  more  importantly,  it  is  crucial  to  bear  in  mind  that  many  of  those  who  will 
abuse  children  do  not  necessarily  have  prior  criminal  records. 

In  January  1990,  the  Joint  Legislative  Advisory  Task  Force  on  Child  Care  issued 
its  report,  "Building  Better  Child  Care  in  Oklahoma."  As  a  member  of  the  Task 
Force  I  became  well  acquainted  with  massive  demographic  changes  that  rapidly  ex- 
pand the  need  for  services  for  children  outside  the  home.  The  conclusion  of  the  Task 
Force  was  that  "[t]he  single  most  important  factor  that  will  increase  the  quality  of 
care  for  children  in  child  care  facilities  is  the  training  of  the  child  caregiver. 

Related  to  training  and  to  the  issue  of  obtaining  background  checks  is  the  fact 
of  substantial  turnover  in  the  child  care  field.  We  found  in  Oklahoma  that  "[i]n  any 
given  year,  42  percent  of  the  staff  in  early  education  and  child  care  programs  and 
59  percent  of  providers  in  family  day  care  homes  will  leave  the  field."  Although  the 
overwhelming  majority  of  employees  take  these  jobs  because  of  their  sincere  concern 
for  and  love  of  children,  most  are  paid  minimum  wages  with  no  benefits.  One  effect 
of  the  turnover  is  that  employers  need  to  have  the  ability  to  hire  promptly  in  order 
to  maintain  quality  that  comes  from  even  minimal  staffing.  A  more  significant  effect 
of  the  turnover  is  the  toll  on  the  children.  While  infants  and  toddlers  have  special 
needs  for  stability,  the  child  often  faces  adjustment  to  two  or  more  caregivers  in  a 
year. 

We  ask  that  members  of  this  committee  continue  to  recognize  that  each  state 
struggles  with  the  best  way  to  protect  its  children  while  providing  affordable  care. 
Passing  the  costs  of  the  checks  on  to  the  clients  makes  child  care  inaccessible  for 
some.  When  we  mandate  safety  precautions  from  fire  exits  to  child/staff  ratios,  we 
are  always  confronted  by  cost  issues.  Although  some  of  our  decisions  are  made  easy 
because  the  costs  are  minimal  compared  to  the  risks  entailed,  others  do  not  come 
easily. 

Even  though  the  cost  to  conduct  the  search  may  be  borne  by  the  applicant  under 
the  bill,  volunteer  organizations  that  are  compelled  to  conduct  the  background  check 
could  find  that  cost  unacceptable  and  thus  pass  the  cost  along  to  the  volunteer.  The 
potential  volunteer  that  is  recruited  to  give  a  valued  few  hours  each  week,  may  feel 
that  a  criminal  background  check  is  insulting,  costly,  or  too  much  trouble  to  pursue. 
There  is  always  the  possibility  that  unnecessary  requirements  could  have  a  chilling 


42 

effect  on  perfectly  able  and  energetic  volunteers  who  are  needed  to  fulfill  community 
needs.  That  is  why  it  is  important  that  the  bill  leave  the  choice  of  requirements  for 
background  checks  to  the  states. 

It  is  in  these  difficult  debates  that  the  value  of  federalism  is  most  pronounced; 
as  states,  we  can  innovate  without  putting  the  nation  at  risk.  The  principle  of  re- 
serving power  to  the  states  can  reinvigorate  accountability  and  responsiveness  in 
government. 

STATE  ACTIONS  RELATIVE  TO  BACKGROUND  CHECKS 

The  national  interest  in  supporting  the  accuracy  of  the  nationwide  check  is  fur- 
ther underscored  by  the  fact  that  nearly  every  state  uses  the  FBI  search  for  clear- 
ance of  persons  entrusted  with  money,  property  or  people.  According  to  the  Federal 
Bureau  of  Investigation,  31  states  now  have  laws  that  allow  some  entities  super- 
vising children  to  seek  fingerprint  background  checks.  In  order  for  a  state  to  partici- 
pate in  this  program,  it  must  submit  an  authorizing  statute  to  Attorney  General  for 
approval. 

Allowing  states  to  choose  to  initiate  various  safety  precautions  including  back- 
ground checks  is  an  important  way  for  states  to  remain  responsive  to  their  constitu- 
encies and  to  innovate.  On  the  other  hand,  consistent  movement  toward  allowing 
nationwide  background  checks  suggests  the  national  interest  in  each  state's  reach- 
ing for  a  national  disposition  rate  and  standard  of  automation.  The  brief  look  at  the 
states  represented  on  this  committee  shows  the  variety  of  approaches  to  security  for 
children  cared  for  away  from  home. 

In  the  chairman's  state  of  California,  the  background  check  system  has  been  in 

Silace  for  twenty  years  for  public  school  teachers.  California  does  fingerprint  checks; 
or  those  residing  in  the  state  for  more  than  3  years  an  in-state  search  is  done,  oth- 
erwise the  FBI  search  is  also  completed.  Although  California  is  largely  automated, 
it  places  its  disposition  rate  at  50  to  60  percent.  With  550,000  applicants  in  1992, 
the  state  raised  $17,600,000  in  revenue. 

Massachusetts  does  not  yet  authorize  the  use  of  FBI  checks  but  there  is  legisla- 
tion pending  to  require  background  checks  for  some  purposes.  Right  now,  licensed 
day  care  is  required  to  do  background  checks  as  a  condition  of  licensure,  but  these 
are  only  name  checks. 

In  North  Carolina,  a  bill  now  in  committee  would  mandate  fingerprint  criminal 
record  checks  of  child  day  care  providers  and  their  spouses.  Currently,  the  state  is 
prepared  to  do  only  name  background  checks,  as  it  does  for  teachers  at  the  discre- 
tion of  school  districts.  North  Carolina  charges  $14  for  a  fingerprint  check  and  does 
not  consider  it  a  revenue  raiser.  This  state's  disposition  rate  is  near  90  percent. 

Following  the  pattern  of  other  states,  North  Carolina  is  taking  other  measures  to 
improve  the  quality  of  child  care.  In  the  most  recent  session,  it  strengthened  the 
ability  of  inspectors  to  make  unannounced  visits  at  centers,  clarified  revocation  of 
licenses  and  improved  fire  prevention  standards. 

Florida,  which  has  an  open  records  law  allowing  private  citizens  to  ask  for  a  name 
check,  is  a  pilot  state  for  the  National  Fingerprint  Pile  project  being  developed  by 
the  FBI  as  the  next  step  beyond  the  Interstate  Identification  Index.  Florida  has  au- 
thorized criminal  background  checks  for  child  care  personnel  since  the  early  1980's. 
It  has  authorized  FBI  fingerprint  checks  for  child  care  facilities,  mental  health  fa- 
cilities, treatment  personnel  including  volunteers  for  alcohol  and  drug  abuse  treat- 
ment for  minors  and  juvenile  delinquency  personnel.  School  boards  retain  discretion 
whether  to  require  background  checks  for  volunteers,  cooks  and  other  persons.  For 
teacher  certification,  Florida  charges  a  $15  fee  on  top  of  the  FBI's  $23  fee.  The  state 
check  can  now  take  eight  to  twelve  days,  and  the  federal  fingerprint  check  can  add 
a  couple  months  to  the  process. 

Texas,  like  Florida,  allows  its  Department  of  Human  Services  to  do  national 
checks  on  owners  and  employees  of  child  care  facilities,  residents  of  registered  fam- 
ily homes,  persons  providing  adoptive  or  foster  care  for  children  in  the  custody  of 
the  department,  volunteers  in  Big  Brother/Big  Sister  programs  and  more.  A  recent 
Texas  law  allowing  criminal  background  checks  for  volunteers  will  create  substan- 
tial new  costs  and  pressures  because  of  the  possible  burden  of  thousands  of  new  re- 
quests. Under  the  law,  the  Texas  Department  of  Public  Safety  has  authority  to  pro- 
vide background  data  to  one  volunteer  agency  in  Dallas  that  refers  66,000  volun- 
teers to  760  agencies. 

Dlinois  provides  for  name  checks  and  fingerprint  checks.  Illinois  has  authorized 
national  checks  for  child  care  licensees,  school  district  employees,  bus  drivers  and 
private  adoption  applicants.  The  fees  range  from  $5  to  $10  and  are  not  considered 
a  revenue  raiser. 


43 

Colorado  also  has  name  checks  for  private  citizens  to  use,  and  fingerprint  checks 
for  certified  teachers  and  day  care  personnel.  The  fingerprint  checks  include  na- 
tional checks  of  applicants  for  a  license  to  operate  family  care  homes,  residential 
child  care  facilities,  child  placement  agencies  and  child  care  centers.  Convictions  of 
violent  or  sexual  offenses,  drug  sales,  or  an  offense  which  as  an  "adverse  reflection" 
on  the  individual  may  bar  child  care  employment. 

New  York  does  not  do  name  checks,  but  has  moved  toward  the  Automated  Finger- 
print Identification  System.  The  checks  cost  $25  plus  a  $25  surcharge  in  addition 
to  the  applicable  FBI  fee,  which  is  $23.  The  FBI  currently  is  authorized  by  state 
law  to  provide  background  checks  for  school  bus  drivers  and  attendants,  as  well  as 
for  employees  of  the  New  York  City  school  system. 

As  illustrated  above,  states  show  a  range  of  choices  in  the  structure  of  their  back- 
ground checks,  the  populations  covered  and  fees.  States  with  large  urban  popu- 
lations such  as  New  York  and  California  may  opt  to  charge  higher  fees  that  offset 
expenses  from  a  high  volume  of  applications  and  from  greater  computer  memory  re- 
quirements. As  each  state  moves  to  improve  its  program  and  to  add  persons  to  the 
list  of  those  being  checked  in  the  nationwide  system,  the  federal  government, 
through  the  FBI  must  be  prepared  to  respond  promptly. 

SECTION  BY  SECTION  COMMENTS 

The  following  comments  are  made  to  assist  the  committee  in  crafting  a  better  bill. 
In  general,  principles  of  federalism — accountability,  innovation  and  responsive- 
ness^— should  deter  the  committee  from  regulating  the  details,  where  goals  and  ob- 
jectives can  be  achieved  by  alternative  means. 

SECTION  2 

The  Attorney  General  is  given  authority  to  investigate  "the  records"  in  each  state. 
What  is  probably  meant  is  that  authority  is  given  to  investigate  the  system,  other- 
wise this  seems  to  be  a  rather  staring  reach  of  federal  authority  into  state  records 
for  non-criminal  justice  purposes.  (bX  1XA). 

Asking  states  to  have  an  "on-line  capacity"  is  not  clear.  Although  the  context 
seems  to  suggest  that  states  are  able  to  participate  in  retrieving  information,  the 
law  should  make  clear  that  only  those  criminal  justice  agencies  authorized  to  dis- 
seminate and  collect  information  are  expected  to  be  on-line,  and  then  only  to  the 
FBI.  (bXIXA). 

The  Attorney  General  is  given  plenary  authority  to  establish  guidelines  for  report- 
ing and  indexing  information.  (bXD(B).  The  law  should  make  explicit  that  these 
guidelines  are  to  be  prepared  in  consultation  with  states.  Specifically,  representa- 
tives of  legislatures  and  courts  as  well  as  data  repositories  should  be  included  in 
the  process  early  to  improve  chances  for  success.  Final  disposition  relies  upon  infor- 
mation provided  from  a  variety  of  sources,  including  law  enforcement,  prosecutors, 
courts  and  correctional  facilities. 

Also,  the  bill  should  perhaps  take  cognizance  of  the  fact  that  significant  work  has 
begun  on  this  issue  by  the  Advisory  Policy  Board  as  they  move  toward  a  national 
fingerprint  file.  The  issue  appears  less  complex  on  paper  than  is  actually  the  case. 
Sufficient  consideration  should  be  given  to  the  costs  of  harmonization  as  states  may 
be  required  to  change  much  of  their  record-keeping. 

Under  (bX2XA),  states  are  given  3  years  to  have  an  80  percent  disposition  rate 
in  computerized  records  on  child  abuse  crime  cases.  How  does  this  harmonize  with 
the  need  for  accurate  disposition  on  all  background  check  crimes?  The  statute  de- 
fines them  differently.  Presumably,  for  the  system  to  be  effective,  all  background 
check  crimes  must  have  the  requisite  disposition.  That  is  why  the  cost  of  making 
the  system  work  must  include  more  than  the  narrow  focus  of  child  abuse  offenses. 

Research  should  be  targeted  for  use  by  state  policy  makers.  The  study  of  child 
abuse  offenders  to  be  done  by  the  Office  of  Juvenile  Justice  and  Delinquency  Pre- 
vention should  be  interdisciplinary,  not  neglecting  issues  of  health,  mental  health 
and  education. 

SECTION  3 

Section  (a)  mandates  that  agencies  respond  promptly.  We  urge  avoiding  language 
that  could  encourage  disputes,  unless  there  is  substantial  evidence  to  suggest  that 
agencies  do  not  respond  promptly  to  requests.  Remember  that  failure  to  respond  to 
a  noncriminal  justice  inquiry  can  be  caused  by  criminal  justice  demands  on  the  sys- 
tem. The  bill  could  unintentionally  cause  legal  disputes  over  the  priorities  given  law 
enforcement  and  other  users  of  the  system. 


44 

Also,  we  would  be  concerned  in  section  (a)  whether  the  permission  to  determine 
convictions  and  provide  that  information  would  by  negative  implication  prevent 
states  from  acting  on  information  that  does  not  show  a  conviction.  Again,  we  expect 
that  the  effort  to  grant  states  authority  that  they  already  have  ana  are  exercising 
regularly  may  end  up  with  the  unintended  consequence  of  prohibiting  state  prac- 
tices intended  to  increase  the  security  of  children.  For  instance,  would  a  state  be 
prevented  from  acting  on  a  person  who  is  on  pre-trial  release  or  diversion  programs? 

This  section  becomes  quite  detailed.  We  urge  that  Congress  not  include  the  man- 
datory language  throughout  the  guidelines,  especially  because  the  use  of  the  system 
itself  is  permissive.  Perhaps  states  will  develop  different  approaches  to  providing  ac- 
cess to  the  system  for  persons  with  different  levels  of  supervision  of  children. 

Guidelines  of  the  Attorney  General  should  only  be  made  in  consultation  with  state 
policy  makers,  and  not  merely  with  criminal  justice  or  child  care  specialists. 

Under  (C)  the  agency  is  to  respond  within  15  days.  This  mandate  may  not  be  fea- 
sible in  some  instances.  The  delay  may  not  necessarily  be  from  the  state  agency. 
They  should  not  sacrifice  accuracy  and  thoroughness  to  speed.  Different  applicants 
might  also  have  different  priorities  within  a  given  state.  The  bill  should  not  lock 
states  into  arbitrary  and  unnecessary  requirements. 

Section  (DX2)  prevents  the  report  of  the  authorized  agency  from  being  the  sole 
basis  for  determining  the  fitness  of  the  provider.  Some  states  might  prefer  to  have 
the  flexibility  to  assume  that  after  going  to  the  trouble  and  expense  of  making  the 
national  background  check,  one  should  be  permitted  to  act  on  that  information. 

Under  section  (E),  the  details  may  not  need  to  be  set  forth  in  this  legislation.  Dis- 
putes may  arise  between  the  authorized  agency  and  the  entity  seeking  to  qualify 
a  provider.  If  entities  are  not  given  full  information,  then  the  judgment  of  what  is 
necessary  to  fulfill  the  purpose  of  the  Act  is  left  with  the  criminal  justice  agency. 
Because  there  may  be  legitimate  and  useful  distinctions  regarding  the  amount  of 
information  necessary,  states,  and  not  the  Attorney  General,  should  be  given  flexi- 
bility to  make  such  decisions. 

Under  (F),  an  entity  may  choose  to  deny  unsupervised  access  until  determination 
of  validity  or  the  provider  has  waived  the  right  to  make  a  challenge.  The  language 
of  the  statute,  however,  does  not  seem  to  leave  the  entity  the  right  to  deny  employ- 
ment once  the  validity  is  called  into  question  or  the  waiver  is  not  granted.  This 
seems  to  put  the  hiring  agency  in  a  bind.  The  language  should  ensure  that  all  rea- 
sons valid  under  state  law  not  to  hire  a  person  are  still  valid.  Again,  the  existence 
of  contending  values  suggests  that  the  federal  guidelines  should  be  limited,  or  that 
the  states  should  be  given  flexibility  in  this  area. 

Section  (bX2)(I)  limits  liability  where  an  adverse  decision  is  made  on  a  provider. 
What  controls  the  liability  where  a  decision  is  made  on  incorrect  information  pro- 
vided from  the  system  where  the  decision  is  favorable  to  the  provider? 

SECTION  4 

Section  (b)  The  statistic  to  be  followed  by  the  Attorney  General  to  determine  sup- 
plemental grants  is  identifiable  child  abuse  cases.  Yet  the  act  has  separate  defini- 
tions for  child  abuse  cases  and  for  background  check  offenses.  The  nationwide  check 
used  is  to  identify  more  than  child  abuse  cases  promptly. 

Section  (c)  allows  the  Attorney  General  to  penalize  states  that  have  not  kept  with 
the  timetable  of  the  act.  The  power  to  penalize  takes  effect  within  one  year,  but  the 
timetable  under  section  2  of  the  act  allows  states  three  years  to  achieve  80  percent 
disposition.  The  Attorney  General,  however,  has  180  days  to  work  out  a  time  line 
with  the  states.  States  face  potential  penalties  even  though  the  federal  delay  may 
be  partially  responsible  for  the  failure  to  meet  deadlines.  The  best  way  to  ensure 
that  states  meet  mandated  guidelines  is  to  fully  fund  the  program.  Therefore,  no 
penalties  should  apply  unless  and  until  the  authorized  funding  is  fully  appropriated. 

SECTION  5 

"Background  check  crime"  should  be  flexible  to  meet  state  definitions.  A  minimum 
level  can  be  set  to  provide  some  uniformity,  yet  some  states  may  wish  to  include 
other  offenses  that  warrant  attention.  Listing  specific  crimes  that  may  be  predictive 
of  bad  behavior  may  be  interpreted  as  a  limitation. 

"Child  care"  definition  seeks  to  be  inclusive,  but  can  bring  the  usefulness  of  the 
act  down  under  its  own  weight.  States  have  experimented  with  a  variety  of  defini- 
tions concerning  what  level  of  care  is  deserving  of  fingerprint  background  checks. 
Adding  volunteers  can  add  significant  costs.  By  applying  the  same  guidelines  to  all 
state  statutes  allowing  release  of  information,  states  lose  the  flexibility  to  determine 
which  volunteers  are  in  a  position  sufficiently  responsible  to  request  background 
checks. 


45 


CONCLUSION 


The  National  Conference  of  State  Legislatures  shares  this  committee's  concern 
that  the  care  of  our  children  is  a  major  priority.  Innovative  solutions  should  be  tried 
to  arrest  instances  of  abuse  that  threaten  their  well-being.  In  shaping  these  solu- 
tions, it  is  still  necessary  to  respond  to  the  taxpayers  and  to  inform  them  of  the  real- 
istic benefits.  As  legislators,  we  should  respect  the  principle  of  funding  our  promises. 
As  actors  in  the  federal  system,  we  can  build  a  safer  country  while  respecting  the 
benefits  of  allowing  states  the  right  to  be  innovative  and  responsive. 

Mr.  Edwards.  I  think  it  is  very  important,  one  point  you  made 
in  particular,  which  is  that  because  a  child  day  care  center  has  an 
applicant  who  does  not  have  a  criminal  record,  that  doesn't  mean 
that  it  should  substitute  for  a  careful  investigation  of  this  person's 
background  through  references  all  other  ways  of  investigation,  be- 
cause that  is  certainly  not  definitive,  that  the  FBI  does  not  have 
a  criminal  felony  record  of  an  individual. 

Mrs.  Schroeder. 

Mrs.  Schroeder.  Thank  you  very  much,  Senator. 

Your  testimony,  as  I  knew  it  would  be,  is  very  helpful.  We  are 
pleased  that  you  are  supportive  and  that  NCSL  is  supportive,  and 

thank  you. 

I  think  your  caveat  about  how  this  is  only  a  portion  of  what  we 
can  do  about  child  abuse,  is  absolutely  correct.  The  first  bill  I  intro- 
duced when  I  got  here  20  years  ago  was  on  child  abuse,  and  I  am 
still  fighting  that. 

It  is  amazing  how  nobody  wants  to  put  resources  out  there. 
Thank  goodness  for  Hawaii  and  Healthy  Start.  They  seem  to  be  the 
only  ones  with  the  real  commitment  to  put  the  money  down. 

In  the  interim,  we  have  to  work  in  the  world  we  are  in  and  try 
and  figure  out  what  we  can  do  to  stop  one  of  the  things  that  drives 
people  crazy,  that  is  when  they  read  about  somebody  abusing  chil- 
dren who  had  a  record  in  other  places,  and  this  is  one  thing  that 
we  could  have  stopped. 

We  realize  this  is  only  a  piece  of  what  we  need  to  put  together, 
but  we  need  to  put  it  together  and  keep  working  on  it.  We  have 
gone  through  this  with  child  support  enforcement,  too,  and  we  get 
into  this  very  awkward  Kabuki  theater  type  of  thing  with  the 
States  and  the  Federal  Government.  The  States  saying,  yes,  we 
should  all  be  tied  together,  it  would  help  us  with  child  support  en- 
forcement or  with  background  collection.  On  the  other  hand,  the 
question  of  how  we  pay  for  it  gets  to  be  very  troubling.  We  have 
now  had  some  States  who  have  done  a  very  good  job,  some  who 
have  not  done  anything.  If  we  suddenly  federally  fund  the  ones 
who  didn't  do  anything,  then  the  ones  who  did  a  good  job,  it  is  like 
they  were  foolish  to  have  done  a  good  job  because  they  could  have 
had  the  Federal  Government  pick  it  up  later  on.  We  see  that  with 
the  floods,  the  cities  who  spent  money  and  those  who  didn't. 

I  hear  you  say  $20  million  is  not  enough.  How  would  you  deal 
with  that  at  this  level  as  we  try  to  get  States  and  the  Federal  Gov- 
ernment to  work  better  together? 

What  is  a  fair  allocation?  The  Federal  Government  can't  pick  up 
100  percent  of  everything,  but  what  is  it  reasonable  for  a  State  to 
contribute.  The  State  benefits  by  this,  too.  It  speeds  up  their  crimi- 
nal justice  system. 

Ms.  Miles-LaGrange.  Congresswoman  Schroeder,  I  may  go  at  it 
another  way  for  purposes  of  trying  to  get  to  where  you  are  trying 


46 

to  get  with  this  bill.  I  think  it  is  critical  because  of  the  situation 
that  you  have  described,  with  just  kind  of  a  hodgepodge  where 
States  are  at  different  points  and  different  levels  in  their  automa- 
tion, in  their  collection  of  dispositions,  and  so  forth.  I  think  for  pur- 
poses of  this  bill,  if  this  measure  is  really  going  to  be  effective,  we 
need  to  be  acting,  or  you  need  to  be  acting  on  good  information,  the 
best  information  that  you  can  possibly  get,  about  where  the  several 
States  are  in  this  process,  about  what  the  anticipated  costs — the 
scenario  I  gave  you  just  by  way  of  illustration,  about  where  Okla- 
homa has  to  get  to,  where  it  is  now  and  where  it  has  to  get  to, 
those  were  fairly  quickly  collected  numbers  and  are  certainly  not 
hard  and  fast. 

I  think  we  need  to  know  what  we  are  dealing  with,  first,  in  terms 
of  dollars,  and  then  we  can  be  more  effective  in  kind  of  plugging 
in,  if  you  will,  to  other  existing  measures.  I  think  it  was  in  the 
1984  legislative  session,  Senator  DeConcini  and  Congressman  Mil- 
ler sponsored  legislation  to  appropriate  $25  million  to  encourage 
States  to  require  national  background  checks.  But  the  next  year, 
the  funding  was  dropped. 

In  other  programs,  which  conceivably  this  effort  could  be  tied 
into — that  is  the  criminal  background  checks  for  noncriminal  jus- 
tice purposes — we  just  need  to  get  a  better  reading.  I  think  that  is 
where  I  would  start. 

You  can  share  my  response,  Congress  woman,  but  I  think  that  is 
where  we  have  to  start  if  we  are  going  to  try  to  get  an  effective 
handle  on  it,  because  your  resources  are  limited,  as  the  States'  re- 
sources are  limited.  We  are  crying  saying,  don't  send  the  mandate 
without  the  money,  which  you  know,  we  know  that  you  do  the  best 
you  can  in  that  regard  as  well.  But  trying  to  get  a  real  handle  on 
it,  I  think,  is  a  critical  first  step. 

Mr.  Edwards.  I  think,  Senator,  that  we  all,  at  least  on  this  com- 
mittee, agree  with  you  100  percent,  that  the  Federal  Government 
should  not  mandate  programs  and  not  pay  for  them.  Certainly  in 
the  criminal  justice  area,  the  same  rule  should  apply.  There  is  no 
disagreement  on  that  issue  whatsoever. 

Mr.  Canady. 

Mr.  Canady.  Thank  you,  Mr.  Chairman. 

Senator,  we  really  appreciate  your  being  here  today.  I  think  your 
comments  have  been  helpful  to  us  and  you  have  highlighted  some 
issues  that  are  of  critical  importance;  the  issue  about  what  this  will 
really  cost,  and  getting  to  the  bottom  of  that  issue  I  think  is 
important. 

I  don't  say  that  we  can  move  forward  with  trying  to  implement 
something  until  we  have  a  clear  idea  of  the  cost  involved  for  the 
States.  It  is  easy  for  us  to  sit  here  in  Washington  and  pass  laws 
and  leave  it  up  to  the  people  in  the  States  to  bear  the  costs.  I  don't 
think  we  should  go  about  business  that  way. 

There  is  another  issue  that  I  want  to  raise  about  the  bill.  There 
is  a  concern  brought  to  my  attention,  the  broad  coverage  of  the  per- 
sons that  would  be  considered  child  care  providers.  The  bill  has  a 
definition  of  qualified  entities,  and  basically  that  involves  any  orga- 
nization, whether  it  is  private  or  not-for-profit,  which  provides  child 
care,  and  child  care  is  defined  in  the  bill  as,  "the  provision  of  care, 


47 

treatment,  education,  training,  instruction,  supervision  or  recre- 
ation to  children." 

As  one  example  of  the  possible  application  of  this,  it  occurs  to  me 
that  would  include  Sunday  school  teachers,  for  instance.  Now,  do 
you  have  any  response  to  that,  or  any  thoughts  on  that  broad  defi- 
nition in  the  bill  and  whether  there  might  be  some  things  we  could 
do  to  tighten  the  focus  of  this  somewhat,  not  to  exclude  individuals 
where  there  is  a  substantial  risk  to  children,  but  I  don't  know  that 
we  really  want  to  include  Sunday  school  teachers  in  this  type  of  a 
program.  I  have  serious  reservations  about  whether  that  would  be 
acceptable  and  would  work. 

Ms.  Miles-LaGrange.  I  guess  my  response,  Congressman,  to 
that  would  be  that  on  behalf  of  the  National  Conference  of  State 
Legislatures,  I  think  it  is  very  important  to  leave  the  choice  to  as 
great  an  extent  as  possible,  the  choice  of  requirements  for  back- 
ground checks  to  the  States.  While  we  can  make  a  lot  of  generaliza- 
tions, the  mechanism  of  child  care  may  be  set  up  very  differently 
between  State  A  and  State  B. 

The  cost  issue,  as  relates  to  all  of  those  people  who  have  any- 
thing remotely  to  do  with  children,  I  guess  my  argument  is  that 
should  be  an  issue  that  should  be  left  to  the  States  to  make  that 
determination.  I  can  make  a  similar 

Mr.  Edwards.  Would  the  gentleman  yield  at  that  point? 

The  reason  that  we  wrote  the  bill  the  way  it  was,  is  that  the  re- 
quest must  come  from  the  State  agency,  so,  therefore,  the  State 
agency  will  have  control  over  the  process  and  we  trust  that  States 
in  their  wisdom  will  not  be  interested  in  providing  information  to 
irresponsible  or  unqualified  agencies,  and  certainly  not  Sunday 
schools.  Would  that  be  correct,  Senator? 

Ms.  Miles-LaGrange.  That  is  my  understanding  of  it,  Congress- 
man Edwards.  But  let  me  go  on  to  say  this.  Our  argument  would 
be  that  clearly  leave  those  requirements,  if  there  is  room  for — cer- 
tainly I  don't  think  that  is  the  intent  of  the  bill,  Congressman 
Canady,  to  include  a  Sunday  school  teacher,  to  have  Sunday  teach- 
ers, to  require  them  to  have  a  criminal  background  check. 

Mr.  Canady.  I  would  not  suggest  that  is  an  intent  of  anyone.  I 
am  just  concerned  about  the  broad  language.  The  term  "child  care" 
means  the  provision  of  care,  treatment,  education,  training,  in- 
struction, supervision  or  recreation  of  children.  A  strong  argument 
could  be  made  that  that  would  include  Sunday  school  teachers  be- 
cause they  are  involved  in  that  kind  of  activity.  I  think  that  is 
something  we  need  to  focus  on  and  address. 

I  agree  those  types  of  issues  generally  can  best  be  dealt  with  by 
the  State  legislatures,  given  the  particular  circumstances  in  the  in- 
dividual States. 

Mr.  Edwards.  I  would  agree  with  the  gentleman  from  Florida, 
that  we  can  trust  the  State  legislatures  and  that  is  the  reason  we 
don't  lightly  license  the  FBI  to  send  criminal  records  to  private  peo- 
ple, private  corporations,  and  we  made  that  exception  only  for 
banks  and  savings  and  loans,  and  probably  unwisely,  because 
sometimes  those  records  get  out.  Sometimes  they  are  sold  by  indi- 
viduals to  other  people.  So  these  are  very  important  records  to  be 
kept  under  very  strict  controls  and  we  can  trust  the  States,  just 
like  we  think  that  the  States  can  trust  us. 


48 

Mrs.  Schroeder,  do  you  have  any  further  questions? 

Mrs.  Schroeder.  I  want  to  apologize  to  the  witness.  I  have  been 
trying  to  help  the  new  Surgeon  General-designate,  and  when 
she  calls,  I  answer.  This  has  not  been  a  good  day.  I  think  you 
understand. 

Thank  you  so  much  for  being  here. 

Ms.  Miles-LaGrange.  Thank  you. 

Mr.  Edwards.  Thank  you  very  much,  Senator.  You  have  been 
very,  very  helpful. 

The  next  three  witnesses  will  testify  as  a  panel.  Lynn  Swann  is 
president  of  the  National  Board  of  Directors,  Big  Brothers  and  Big 
Sisters  of  America,  and  he  is  from  Philadelphia,  PA.  We  are 
pleased  to  have  Mr.  Swann  here,  even  though  I  might  say,  Mr. 
Swann,  that  on  quite  a  number  of  Sunday  afternoons,  being  a  fan 
of  the  Washington  Redskins,  you  ruined  my  afternoon. 

Also  a  member  of  the  panel  who  will  testify  after  Mr.  Swann — 
and  Mr.  Potts,  you  can  join  Mr.  Swann — is  Lawrence  F.  Potts,  who 
is  director  of  administration  of  the  Boy  Scouts  of  America  from  Ir- 
ving, TX.  And  the  third  member  of  the  panel  is  Col.  Thomas  A. 
Handley,  who  is  legal  counsel,  and  he  will  be  accompanied  by 
Renova  Williams,  director  of  personnel  of  the  Civil  Air  Patrol,  Max- 
well Air  Force  Base,  in  Montgomery,  AL. 

Mr.  Swann,  Mr.  Potts,  and  Mr.  Handley,  without  objection,  your 
full  statements  will  be  made  a  part  of  the  record. 

We  welcome  all  of  you,  and  you  may  proceed. 

STATEMENTS  OF  LYNN  C.  SWANN,  PRESIDENT  OF  THE  BOARD, 
BIG  BROTHERS/BIG  SISTERS  OF  AMERICA 

Mr.  Swann.  Mr.  Chairman,  committee  members,  counsel  and 
staff,  on  behalf  of  Big  Brothers  and  Big  Sisters  of  America,  I  would 
like  to  thank  you  for  inviting  us  to  be  here  this  morning. 

Mr.  Chairman,  my  mother  once  told  me  if  you  look  past  an  indi- 
vidual's obvious  faults,  you  usually  find  a  pretty  good  person.  Now 
that  we  know  who  your  choice  of  football  teams  is,  we  know  your 
obvious  faults.  I  will  not  hold  that  against  you. 

Big  Brothers  and  Big  Sisters  of  America  has  been  around  since 
1904,  and  we  are  the  preeminent  mentoring  organization  in  this 
Nation.  We  have  507  agencies  throughout  the  country.  Our  pri- 
mary concern  is  to  provide  a  service  to  young  people  across  this 
country,  to  give  them  a  positive  adult  companion  to  help  guide 
them  through  what  I  feel  is  probably  the  most  dangerous  time  for 
young  people  that  we  have  ever  seen  in  our  Nation;  to  give  them 
a  positive  outlook;  to  make  them  aware  of  all  the  possibilities  that 
we  have  in  this  Nation  for  them  to  grow,  to  experience,  and  to  be 
the  best  possible  individual  that  they  can  be. 

Today  in  our  society  our  children  are  actually  living  and  walking 
through  a  war  zone  with  the  possibilities  for  them  to  become  in- 
jured, to  die  on  the  way  to  school  in  random  shootings,  young  peo- 
ple carrying  arms,  drug  abuse  rampant  in  our  country,  child  and 
sexual  abuse.  These  are  the  conditions  that  our  children  are  living 
under. 

While  our  primary  concern  is  to  provide  a  productive  and  positive 
outlook  for  these  young  people,  our  one  big  concern  has  to  be  to 
protect  these  children.  With  that  in  mind,  as  a  part  of  our  basic 


49 

standards  and  practices  for  all  of  our  agencies,  we  require  them  to 
do  a  criminal  background  check  of  all  potential  volunteers. 

This  sometimes  nas  been  costly.  Tnis  sometimes  has  met  with 
great  obstacles,  but  we  have  endured  the  cost  and  the  burden  of 
getting  this  done.  We  continue  to  do  other  background  checks, 
interviews  delving  into  the  background  of  these  volunteers.  We 
serve  over  100,000  children  in  one-to-one  relationships  in  the  Na- 
tion now.  We  have  several  thousand  on  waiting  lists. 

Volunteers  are  very  important  to  us  and  we  need  more  volun- 
teers across  this  Nation,  but  our  average  is  that  one  out  of  six  vol- 
unteers that  applies  becomes  a  big  brother  or  big  sister,  because  we 
are  absolutely  concerned  with  the  quality  of  the  relationship  and 
protecting  these  young  people.  After  going  through  an  extensive 
background  check,  the  parents  and  the  children  meet  these  volun- 
teers and  the  parent  has  the  ultimate  decision  of  whether  or  not 
this  relationship,  this  one-to-one  match  is  going  to  be  made. 

And  we  would  like  to  provide  them  with  as  much  information  for 
them  to  make  the  educated  and  smart  decision  for  the  welfare  of 
their  child.  We  are  behind  H.R.  1237.  And  we  believe  that  like  a 
young  child,  this  bill  is  in  its  infancy,  and  it  is  being  conceived  with 
the  idea  that  we  want  it  to  grow  and  be  productive  and  to  be 
strong. 

But  as  a  child  is  born  into  this  world,  it  may  not  yet  have  all 
of  its  teeth  and  the  power  to  sustain  its  own  life.  But  with  great 
care  and  concern  and  time,  we  hope  to  make  sure  that  the  child 
will  grow  strong  and  make  the  positive  decisions  and  have  the  most 
positive  outcome. 

With  that  in  mind,  Big  Brothers  and  Big  Sisters  stands  ready  to 
help  and  provide  you  with  as  much  information,  and  stands  behind 
H.R.  1237  to  make  sure  that  we  begin  the  process,  something  that 
is  long  overdue  and  very  necessary  for  all  the  child  care  volunteer 
agencies  in  this  Nation. 

Thank  you. 

Mr.  Edwards.  Thank  you,  Mr.  Swann.  We  are  pleased  to  have 
the  support  of  your  great  organization. 

[The  prepared  statement  of  Mr.  Swann  follows:] 


50 


Big  Brothers/Big  Sisters  of  America 


Testimony  of 

Lynn  C  Swann 

President  of  the  Board 

Big  Brothers/Big  Sisters  of  America 

before  the 

House  Committee  on  the  Judiciary 
Subcommittee  on  Civil  and  Constitutional  Rights 


Friday,  16  July  1993 
Capitol  Building 
Washington,  DC 


® 


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51 


Big  Brothers/Big  Sisters  of  America 


Thank  you.  Chairman  Brooks,  for  providing  me  the  opportunity  to  testify  before  this 
Subcommittee  regarding  HR  1237,  a  bill  to  establish  procedures  for  national  criminal 
background  checks. 

I  am  Lynn  Swann,  president  of  the  board  of  Big  Brothers/Big  Sisters  of  America,  the 
federated  movement  of  over  five  hundred  Big  Brothers/Big  Sisters  affiliated  agencies, 
located  in  all  fifty  states.  The  Big  Brothers/Big  Sisters  movement  began  in  1904  to 
provide  One-To-One  services  to  boys  and  girls  in  need  of  additional  adult  support  and 
guidance. 

Big  Brothers/Big  Sisters  of  America  exists  to  build  the  capacity  of  local  affiliated 
agencies  to  give  children  and  youth,  typically  from  single  parent  homes,  the 
opportunity  to  experience  healthy  relationships  with  caring  adult  volunteers,  primarily 
through  One-To-One  services.  Such  relationships  are  the  foundation  for  developing 
the  full  potential  of  boys  and  girls  as  they  grow  to  become  competent  and  caring  men 
and  women. 

Mr  Chairman,  as  you  know,  our  nation's  children  face  greater  obstacles  today  than 
ever  before.  Illiteracy,  substance  abuse  and  broken  families  challenge  social  service 
organizations  such  as  ours.  Big  Brothers/Big  Sisters  of  America,  however,  is  working 
to  meet  that  challenge  by  helping  troubled  children  to  lead  productive  lives. 

The  One-To-One  program  works.  According  to  the  Carnegie  Council  on  Adolescent 
Development,  at-risk  children  who  have  successfully  overcome  problems  "have  been 
shown  to  have  at  least  one  significant  positive  role  model, "  other  than  a  parent.  It  is 
this  very  premise  on  which  the  Big  Brothers/Big  Sisters  movement  is  based,  and  the 
reason  why  I  appear  before  you  this  morning. 

I  encourage  your  support  and  adoption  of  HR  1237  because  it  will  assist  in  protecting 
the  children  we  serve.  Protecting  children  is  our  highest  priority. 

Selection  of  the  most  appropriate  volunteers  to  serve  as  Big  Brothers  and  Big  Sisters  is 
a  task  our  affiliated  agencies  take  very  seriously.  We  believe  we  have  a 
comprehensive  approach  to  the  selection  of  adult  volunteers  which  includes 
orientation,  written  application,  at  least  three  references,  two  in-depth  interviews. 


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52 


Big  Brothers/Big  Sisters  of  America 

home  assessment,  interviews  with  significant  others,  criminal  background  checks  and, 
in  some  cases,  psychological  testing.  Additionally,  all  applicants  must  go  through  a 
child  sexual  abuse  prevention  orientation,  education  or  training. 

It  is  a  comprehensive  approach,  but  not  foolproof.  Our  affiliates  are  required  by  our 
Standards  and  Required  Procedures  for  One-To-One  Service  to  obtain  the  arrest  and 
conviction  records  of  a  volunteer  from  local,  state  or  national  law  enforcement 
authorities,  where  legally  permissible.  Where  such  records  are  not  legally  accessible 
to  the  agency,  the  volunteer  must  provide  an  authentic  copy  of  his/her  arrest  and 
conviction  records. 

As  you  can  see,  a  critical  component  of  our  volunteer  selection  process  is  the  criminal 
background  check  that  all  agencies  must  conduct.  Some  states  do  not  permit  or  do  not 
assist  with  the  obtaining  of  police  checks  (for  example.  New  York  and  New  Jersey), 
while  others  require  cost  prohibiting  fees;  some  agencies  can  only  obtain  local  or 
county  checks. 

Considering  our  volunteer  population,  typically  individuals  under  age  35,  a  highly 
mobile  age  bracket,  and  our  wide  use  of  college  and  military  personnel  who  travel  and 
live  in  various  locations,  the  need  is  to  go  beyond  the  local  or  state  system  to  obtain 
criminal  background  checks. 

A  few  stales  now  require  fingerprinting  as  a  means  of  identification.  Fingerprinting  is 
effective,  however,  we  are  concerned  with  the  amount  of  time  involved  with  securing 
fingerprints  and  obtaining  criminal  background  checks.  Our  volunteer  selection 
process  (from  inquiry  through  acceptance)  typically  takes  approximately  four  to  six 
weeks.  Our  agencies  in  Maryland  and  California,  for  example,  have  experienced 
lengthy  delays  in  the  processing  of  criminal  checks.  We  would  hope  that  the  process 
addressed  in  this  legislation  would  be  conducted  in  a  timely  manner  so  that  we  would 
not  risk  losing  valuable  volunteers  because  of  excessive  processing  time.  Our 
volunteers  are  the  life  blood  of  the  service  we  provide  and  our  agencies  need  to  be  able 
to  process  these  volunteers  in  a  timely  manner. 

In  addition  to  the  selection  of  volunteers,  we  are  most  interested  in  the  prevention  of 
child  sexual  abuse,  and  have  developed  EMPOWER,  the  child  sexual  abuse  education 
and  prevention  program  designed  by  Big  Brothers/Big  Sisters  of  America  for  its 
affiliated  agencies.  This,  and  other  similar  prevention  programs,  have  proven  effective 
in  educating  adults  and  children  about  the  threat  of  child  sexual  abuse.  EMPOWER 


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53    ' 


Big  Brothers/Big  Sisters  of  America 

offers  pre-  and  post-program  questionnaires  to  measure  program  effectiveness  for  each 
of  the  six  program  variations. 

EMPOWER  can  effectively  be  used  to  train  professional  staff,  adult  volunteers, 
parents,  teens  13  years  of  age  and  older  and  children  between  the  ages  of  6  and  12. 
EMPOWER  uses  a  variety  of  training  methods  that  include  videos,  informal 
discussions,  group  activities  and  games  for  children.  Training  methods  are  flexible 
and  can  be  easily  adapted  to  the  age  and  developmental  level  of  the  training 
population.  The  program  design  is  based  on  the  belief  that  providing  training  for 
professional  staff,  parents,  adult  volunteers,  and  most  importantly,  children  and  teens, 
is  a  responsible  and  needed  contribution  toward  addressing  a  serious  issue  in  our 
society. 

While  education  is  extremely  important  in  the  prevention  of  child  abuse,  it  is  also 
important  to  deter  individuals  from  our  program  who  could  potentially  harm  children. 

This  legislation  of  national  criminal  background  checks  would  create  a  uniform  and 
consistent  method  of  reporting  and  tracking  individuals  who  have  been  involved  in 
child  abuse  crimes.  As  a  national  organization,  with  affiliates  in  all  fifty  states,  we  are 
most  interested  in  an  approach  on  a  national  level  that  will  enable  our  agencies  to 
access  criminal  background  checks.  The  modest  investment  of  dollars  would  pay 
significant  dividends,  if  only  a  few  children  are  saved  by  this  reporting  requirement. 
We  urge  your  full  support  of  HR  1237. 

Mr  Chairman,  I  thank  you  for  the  opportunity  to  appear  before  your  subcommittee 
today. 


Lynn  C  Swann,  Board  President 
Big  Brothers/Big  Sisters  of  America 
16  July  1993 


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54 

Mr.  Edwards.  We  will  now  hear  from  the  next  member  of  the 
panel.  Lawrence  F.  Potts,  director  of  administration  for  Boy  Scouts 
of  America. 

Mr.  Potts. 

STATEMENT  OF  LAWRENCE  F.  POTTS,  DIRECTOR  OF 
ADMINISTRATION,  BOY  SCOUTS  OF  AMERICA 

Mr.  Potts.  I,  too,  am  pleased  to  be  here  today  to  represent  the 
Boy  Scouts  of  America  and  their  views  on  H.R.  1237,  the  National 
Child  Protection  Act.  I  have  attached  to  my  statements  some  back- 
ground information  on  the  Boy  Scouts  of  America,  and  also  their 
child  abuse  prevention  program.  I  also  serve  as  a  member-at-large 
on  the  U.S.  Advisory  Board  on  Child  Abuse  and  Neglect,  and  I  am 
not  here  today  representing  their  views  on  this  bill. 

The  Boy  Scouts  of  America  has  been  deeply  concerned  about  the 
welfare  of  youth  since  1910.  More  recently,  in  1986,  then  chief 
scout  executive,  Ben  Love,  identified  child  abuse  as  one  of  five 
unacceptables.  The  others  are  drug  abuse,  hunger,  illiteracy  and 
youth  unemployment. 

To  combat  child  abuse,  BSA,  with  the  help  of  experts,  has  de- 
signed a  special  five-point  plan.  The  elements  are:  education  at  all 
levels,  adults,  parents,  volunteers  and  even  youth,  in  the  detection 
and  prevention  of  child  abuse;  assisting  sponsoring  organizations  in 
strengthening  leader  selection  procedures;  creating  barriers  within 
the  scouting  program;  encouraging  prompt  reporting  of  any  alleged 
incident;  and  taking  swift  action  once  a  report  is  received. 

Much  more  indepth  information  on  our  program  is  contained  in 
the  excerpted  article  that  was  included  in  the  handout  materials. 

Turning  to  the  legislation,  I  want  to  give  you  some  brief  informa- 
tion on  scouting  so  that  can  you  understand  our  approach  to  this 
legislation.  The  charter  of  the  Boy  Scouts  of  America  indicates  that 
the  purpose  of  the  Boy  Scouts  of  America  is  to  provide,  through 
other  organizations,  an  educational  program  for  boys  and  young 
adults  to  build  character,  learn  citizenship,  and  develop  personal 
fitness.  Our  method  of  program  delivery  may  make  us  unique  with- 
in the  ranks  of  large  national  youth  programs.  We  don't  operate 
storefronts.  We  don't  organize  or  operate  Cub  Scout  packs  or  Boy 
Scout  troops  ourselves. 

We  offer  the  program  of  the  Boy  Scouts  of  America  to  community 
groups  for  them  to  use  as  part  of  their  own  youth  work.  Today 
there  are  more  than  85,000  community  organizations  who  use  the 
scouting  program.  An  example  of  such  an  organization  would  be  a 
local  church  or  a  school  PTA. 

These  local  community  organizations  operate  more  than  124,000 
Cub  Scout  packs,  Boy  Scout  troops  and  other  scouting  units.  In  the 
operation  of  these  units,  these  organizations  provide  more  than  1.1 
million  registered  volunteers.  They  are  the  community  organiza- 
tions which  will  be  faced  with  this  criminal  background  checking 
legislation  once  the  States  pass  these  laws. 

Without  these  organizations,  or  their  volunteers,  our  program, 
which  serves  more  than  4.1  million  youth,  could  not  exist.  The 
challenge  that  many  of  these  organizations  and  other  organizations 
face  today  is  finding  adequate  volunteers,  particularly  in  the  inner- 
city  programs.  The  volunteers  are  very  difficult  to  find.  While  we 


55 

applaud  your  efforts  to  attack  a  very  serious  societal  problem, 
while  we  all  agree  that  one  case  of  child  abuse  is  one  too  many, 
child  sexual  abuse  in  institutions  like  schools,  like  churches,  like 
nonprofit  youth  organizations,  and  like  day  care  centers,  probably 
amounts  to  less  than  20  percent  of  the  total  child  sexual  abuse  in 
our  society.  And  sexual  abuse  is  only  14  percent  of  all  reported 
child  abuse  incidents. 

Volunteers  in  youth  programs  are  already  stretched  in  terms  of 
time  and  cost  of  participation.  Many  mothers  and  fathers  will  sim- 
ply be  unable  to  pay  the  additional  cost  involved  in  obtaining  fin- 
gerprints or  background  checks.  Some  might  expect  that  organiza- 
tions should  pay,  but  local  PTA's  and  churches  don't  have  the  kind 
of  funds  to  pay  for  20  volunteer  leaders  who  would  be  involved  in 
a  Cub  Scout  pack. 

It  is  undoubtedly  true  that  many  worthy  volunteers  would  simply 
not  wish  to  subject  themselves  to  being  fingerprinted.  The  cost  in 
the  loss  of  volunteers  would  be  significant  with  most  estimates  run- 
ning from  20  to  30  percent.  And  the  loss  of  volunteers  will  trans- 
late directly  into  a  loss  of  programs  for  youth. 

Some  have  thought  that  making  the  fingerprint  background 
check  optional  for  the  organization  will  make  it  easier  on  volunteer 
organizations  and  I  would  point  out,  however,  that  this  legislation, 
if  passed  by  the  States,  using  the  language  that  you  have  put  up, 
would  establish  a  legal  standard  of  care.  And  that  standard  of  care 
would  have  to  be  followed  by  all  organizations  who  would  otherwise 
suffer  massive  civil  justice  damages  in  the  event  of  an  abusive 
incident. 

And  unfortunately,  experts  have  indicated  that  criminal  back- 
ground checks  identify  in  advance  nothing  more  than  a  small  mi- 
nority of  those  that  are  predisposed  to  molest  a  child.  I  have  ad- 
dressed my  concerns  with  you  today  briefly  on  the  legislation  with 
respect  to  volunteers. 

This  is  because  BSA  is  primarily  a  volunteer  movement  and  be- 
cause we  believe  that  there  are  some  important  distinctions  be- 
tween employees  and  volunteers.  We  believe  that  the  focus  of  this 
legislation  should  be  the  employee  who  has  an  economic  interest  in 
their  position. 

In  the  event  that  this  legislation  goes  forward,  including  volun- 
teers as  it  does  now,  I  would  ask  that  it  include  language  that  vol- 
unteers and  their  organizations  should  be  exempted  from  paying 
for  either  the  fingerprint  process  or  the  criminal  history  check. 

I  thank  you  for  inviting  me  here  today. 

Mr.  Edwards.  Well,  thank  you,  Mr.  Potts,  and  I  am  pleased  that 
you  emphasized  that  there  must  be  investigation.  A  clean  criminal 
record  is  no  substitute  for  an  investigation. 

Mr.  POTTS.  We  completely  agree  with  you,  Mr.  Chairman.  And 
we  are  also  concerned  that  many  people  would  look  at  this  as  the 
solution,  the  panacea,  and  will  not  do  the  other  things  that  need 
to  be  done. 

Mr.  Edwards.  Well,  thank  you. 

[The  prepared  statement  of  Mr.  Potts  follows:] 


56 

Prepared  Statement  of  Lawrence  F.  Potts,  Director  of  Administration,  Boy 

Scouts  of  America 

My  name  is  Lawrence  Potts.  I  work  for  the  Boy  Scouts  of  America  in  the  capacity 
of  Director  of  Administration.  I  am  pleased  to  appear  here  today  representing  the 
Boy  Scouts  of  America  and  their  views  on  House  Bill  1237,  National  Child  Protec- 
tion Act.  I've  attached  to  my  statement  some  background  information  on  the  Boy 
Scouts  of  America  and  also  on  their  Youth  Protection  Program 

I  also  serve  as  a  member-at-large  on  the  U.S.  Advisory  Board  on  Child  Abuse  and 
Neglect.  I  am  not  here  today  representing  their  views  on  House  Bill  1237. 

The  Boy  Scouts  of  America  has  been  deeply  concerned  about  the  welfare  of  youth 
since  1910.  In  1986  then  Chief  Scout  Executive,  Ben  Love,  identified  child  abuse  as 
one  of  "Five  unacceptables"  to  BSA.  The  others  are  drug  abuse,  hunger,  illiteracy, 
and  youth  unemployment.  To  combat  child  abuse  BSA,  with  the  help  of  experts,  has 
designed  a  special  five-point  plan.  The  elements  are:  (1)  education  at  all  levels  on 
the  detection  and  prevention  of  child  abuse,  (2)  assisting  sponsoring  organizations 
in  strengthening  leader  selection  procedures,  (3)  creating  barriers  to  child  abuse 
within  Scouting,  (4)  encouraging  prompt  reporting  of  any  alleged  incident,  and  (5) 
taking  swift  action  once  a  report  is  received.  More  in-depth  information  on  the  BSA 
program  is  contained  in  the  excerpted  article  which  is  included  in  the  handout 
m  fltcri  q.  1  s 

Turning  to  the  legislation  I  want  to  give  you  some  brief  information  on  Scouting 
so  that  you  can  understand  our  approach  to  the  legislation.  The  Charter  of  the  Boy 
Scouts  of  America  indicates  that  the  purpose  of  the  Boy  Scouts  of  America  is  to  pro- 
vide through  other  organizations  an  educational  program  for  boys  and  young  adults 
to  build  character,  learn  citizenship  and  develop  personal  fitness.  Our  method  of 
program  delivery  may  make  us  unique  within  the  ranks  of  large  national  youth  pro- 
grams. We  don't  operate  store  fronts,  organize,  or  operate  Cub  Scout  packs  and  Boy 
Scout  troops  ourselves.  We  offer  the  program  of  the  Boy  Scouts  of  America  to  com- 
munity groups  for  them  to  use  as  a  part  of  their  own  youth  work.  Today  more  than 
85,000  community  organizations  use  the  Scouting  program,  operating  more  than 
124,000  Cub  Scout  packs,  Boy  Scout  troops,  and  other  Scouting  units.  An  example 
of  such  an  organization  would  be  a  local  school  PTA  or  church.  These  community 
organizations  provide  more  than  1.1  million  registered  volunteers.  These  are  the 
community  organizations  which  would  be  faced  with  the  criminal  background  legis- 
lation. Without  these  organizations  and  their  volunteers,  our  program,  which  serves 
more  than  4.1  million  youth,  could  not  exist  . 

The  problem  that  many  of  these  organizations  face  today  is  finding  adequate  vol- 
unteer leaders.  The  kids  are  there,  but  volunteers  are  more  difficult  to  find,  particu- 
larly in  the  inner  cities.  On  the  one  hand  we  applaud  your  efforts  to  attack  a  very 
serious  societal  problem  in  this  country.  While  we  all  agree  that  one  case  of  sexual 
abuse  is  one  too  many,  child  sexual  abuse  in  institutions  and  organizations  probably 
amounts  to  less  than  20%  of  the  total  child  sexual  abuse  in  our  society,  and  sexual 
abuse  is  only  14%  of  all  reported  child  abuse  incidents. 

Volunteers  in  youth  programs  are  already  stretched  in  terms  of  time  and  cost  of 
participation.  Many  mothers  and  fathers  will  simply  be  unable  to  pay  the  additional 
cost  involved  in  obtaining  fingerprints  or  background  checks.  Some  might  expect 
that  the  organizations  should  pay,  but  local  PTA's  or  churches  don't  have  the  kind 
of  funds  to  pay  for  the  20  volunteer  leaders  who  would  be  involved  with  a  Cub  Scout 
pack.  It  is  also  undoubtedly  true  that  some  worthy  volunteers  would  simply  not 
wish  to  subject  themselves  to  being  fingerprinted.  More  volunteers  will  be  lost  in 
this  fashion.  The  cost  in  the  loss  of  volunteers  will  be  significant  with  most  esti- 
mates running  from  20%  to  30%.  Loss  of  volunteers  will  translate  directly  into  a 
loss  of  programs  for  youth. 

Some  have  thought  that  making  the  fingerprint  background  check  optional  lor  the 
organization  will  make  it  easier  on  volunteer  organizations.  I  would  point  out  that 
this  legislation,  if  passed  by  the  states,  would  establish  a  legal  "standard  of  care." 
This  "standard  of  care"  would  have  to  be  followed  by  organizations  who  could  other- 
wise suffer  massive  civil  justice  damages  in  the  event  of  an  abusive  incident.  Unfor- 
tunately, experts  have  indicated  that  criminal  background  checks  would  identify  in 
advance  nothing  more  than  a  small  minority  of  those  who  are  predisposed  to  molest 

a  child.  i.i.ii..  ■.. 

I  have  addressed  my  concerns  briefly  with  you  today  on  this  legislation  with  re- 
spect to  volunteers.  This  is  because  BSA  is  primarily  a  volunteer  movement  and  be- 
cause there  are  some  important  distinctions  between  employees  and  volunteers.  We 
believe  that  the  focus  of  this  legislation  should  be  employees  who  have  an  economic 
interest  in  their  position.  In  the  event  that  this  legislation  goes  forward,  including 
volunteers  as  it  does  now,  I  would  ask  that  it  include  language  that  volunteers  and 


57 

their  organizations  be  exempted  from  paying  for  either  the  fingerprint  process  or  the 
criminal  background  check. 

I  thank  you  for  inviting  me  here  today,  and  I  hope  that  my  comments  have  been 
helpful  to  your  deliberations. 


BOY  SCOUTS  OF  AMERICA 

External  Communications 

132S  West  Walnut  Hill  Lane 

P.O.  Box  1 52079.  Irving.  Texas  7501 5-2079 

Telephone  214-580-2000 


FACT  SHEET 


PURPOSE 


CHARTERED 
ORGANIZATIONS 


PROGRAM 


VOLUNTEER 
LEADERS 


NATIONAL 
ACTIVITIES 


BSA  AT  A  GLANCE 

The  purpose  of  the  Boy  Scouts  ol  America,  incorporated  on  February  8.  1910.  and  chartered  by 
Congress  in  1916.  is  to  provide  an  educational  program  for  boys  and  young  adults  to  build  char- 
acter, to  train  in  the  responsibilities  of  participating  citizenship,  and  to  develop  personal  fitness. 

Community  groups  receive  national  charters  to  use  the  Scouting  program  as  a  part  of  their 
own  youth  work.  These  groups,  which  have  goals  compatible  with  those  of  the  BSA.  include 
religious,  educational,  civic,  fraternal,  business,  and  labor  organizations,  governmental  bod- 
ies, corporations,  professional  associations,  and  citizens'  groups 

Tiger  Cub*.  BSA.  A  one-year  program  for  first-grade  (or  7-year-old)  boys  and  their  adult 
partners  that  stresses  equal  participation.  The  boy  and  adult  meet  weekly  for  family  activities 
and  monthly  for  an  activity  with  other  Tiger  Cubs  and  adults  in  their  group. 

Cub  Scouting.  A  family-  and  home-centered  program  for  boys  who  are  in  second  through 
fifth  grades  (or  8.  9.  and  10  years  old).  When  they  enter  the  fourth  grade,  they  can  become 
Webelos  Scouts  and  prepare  to  become  Boy  Scouts. 

Boy  Scouting.  A  program  for  boys  1 1  through  1 7  designed  to  achieve  the  aims  of  Scouting 
through  a  vigorous  outdoor  program  and  peer  group  leadership  with  the  counsel  of  an  adult 
Scoutmaster.  (Boys  also  may  become  Boy  Scouts  if  they  have  earned  the  Arrow  of  Light 
Award  or  have  completed  the  fifth  grade.) 

Varsity  Scouting.  An  active,  exciting  program  for  young  men  14  through  17  built  around  five 
program  fields  of  emphasis:  advancement,  high  adventure,  personal  development,  service, 
and  special  programs  and  events. 

Exploring.  A  contemporary  program  tor  young  men  and  women  ages  14  through  20  that  pro- 
vides opportunities  to  participate  in  career,  hobby,  or  sports  programs  in  association  with 
business  and  community  organizations.  Special-interest  posts  cover  more  than  180  careers. 
40  hobbies,  and  35  sports. 

Volunteer  adult  leaders  serve  at  all  levels  of  Scouting  in  approximately  380  local  councils.  32 
areas,  and  4  regions,  and  nationally  with  volunteer  executive  boards  and  committees  provid- 
ing guidance. 

Each  autonomous  local  council  is  chartered  by  the  BSA.  which  provides  program  and  training 
aids  along  the  guidelines  established  by  the  national  Executive  Board  and  the  national  char- 
ter from  Congress 

Cub  Scouting  continues  to  strengthen  the  tie  of  the  family  in  Scouting  and  to  encourage 
physical  fitness  through  the  Cub  Scout  sports  emphasis,  and  more  than  2.200  Cub  Scout 
day  camps 

Boy  Scouts  and  Varsity  Scouts  have  many  special  activities  available  to  them,  such  as 
camporees.  summer  camps.  Scouting  shows.  a"d  national  lamborees  The  Order  of  the 
Arrow,  the  national  brotherhood  of  honor  campers,  recognizes  those  Scout  campers  who  best 
exemplify  the  Scout  Oath  and  Law  in  their  daily  lives,  and  it  has  local  lodge  section,  and 
national  meetings.  Those  who  have  become  Eagle  Scouts,  the  highest  advancement  award 
in  Scouting,  may  join  the  National  Eagle  Scout  Association.  All  camps  are  inspected  and 
accredited  annually  by  teams  of  trained  volunteers  to  ensure  the  health,  safety,  and  quality  of 
program  for  campers 

Exploring  holds  a  biennial  national  conference  for  youth  and  adult  members  that  offers  work- 
shops and  activities  on  careers   leadership,  sports,  outdoor  adventure,  and  personal  skills. 


58 


LEARNING 
FOR  LIFE 


NATIONAL 
GOOD  TURNS 

PUBLICATIONS 


FINANCIAL 
SUPPORT 


MEMBERSHIP 
AND  UNITS 


The  biennial  national  law  enforcement  Exploring  conference  provides  competition,  training, 
demonstrations,  program  exchanges,  and  career  information  in  this  field.  An  annual  mock-trial 
competition  provides  a  national  challenge  for  Explorers  interested  in  the  legal  field. 

Scouting  Anniversary  Celebrations,  during  February,  include  observance  of  the  BSA's 
February  8  birthday,  Scout  Sabbath,  and  Scout  Sunday.  Unit  activities  feature  blue  and  gold 
banquets,  courts  of  honor,  and  open-house  meetings. 

Cub  Scouts,  Boy  Scouts,  Varsity  Scouts,  and  Explorers  participate  in  Scouting  Environment  Day 
in  April  and  Scouting  Energy  Day  in  October.  Explorers  and  older  Boy  Scouts  have  a  wide  van- 
ety  of  exciting  outdoor  experiences  available  at  the  three  national  high-adventure  areas  located 
in  Minnesota  (with  satellites  in  northern  Wisconsin,  Manitoba,  and  Ontano),  Florida,  and  New 
Mexico.  Volunteer  leaders  may  attend  the  Philmont  Training  Center  in  New  Mexico  each  sum- 
mer for  a  weeklong  training  conference. 

Learning  for  Life  is  a  wholly  owned  subsidiary  of  the  Boy  Scouts  of  America.  The  mission  of 
Learning  for  Life  is  to  serve  others  by  helping  to  instill  values  of  good  character,  participating 
citizenship,  and  personal  fitness  in  young  people,  and  in  other  ways  prepare  them  to  make 
ethical  choices  throughout  their  lives  so  that  they  can  achieve  full  potential. 

Learning  for  Life  can  help  schools  prepare  students  to  handle  today's  complex  society.  It's 
designed  to  build  confidence,  motivation,  and  self-esteem.  It  can  help  students  leam  positive 
personal  values  and  make  ethical  decisions.  Character  development  is  a  lifelong  process,  with 
roots  firmly  planted  in  childhood.  Learning  for  Life  has  curricula  designed  to  fulfill  its  mission. 

The  Good  Turn  remains  an  important  part  of  Scouting.  It  can  be  a  simple  daily  act  of 
assistance  from  an  individual  youngster,  or  a  coordinated  national  effort. 

The  Boy  Scouts  of  America  publishes  three  magazines  for  its  members:  Soys'  Life,  for  all  boys, 
once  a  month,  Exploring,  a  magazine  for  young  men  and  women  and  their  Exploring  leaders, 
four  times  a  year,  and  Scouting,  for  all  registered  adults  in  Cub  Scouting,  Boy  Scouting,  and 
Exploring,  six  times  a  year. 

In  addition,  handbooks  for  all  phases  of  the  Scouting  program  are  published,  as  well  as  more 
than  one  hundred  merit  badge  pamphlets  for  Boy  Scouts,  leader  books,  training  pamphlets, 
several  program  helps  booklets  for  unit  leaders,  and  other  literature  for  use  by  youth  members. 
adult  leaders,  and  parents. 

The  national  council  is  supported  largely  through  the  annual  fees  paid  by  all  members  and 
service  fees  paid  by  local  councils,  an  Annual  Giving  Campaign  among  national  employees  and 
selected  volunteers,  income  from  the  sale  of  Scouting  equipment,  bequests,  and  special  gifts. 
Local  councils  are  supported  by  communities  through  the  United  Way.  the  annual  Sustaining 
Membership  Enrollment  (SME),  Friends  of  Scouting,  special  events,  investment  income, 
bequests,  endowment  gifts,  and  special  contributions. 

On  the  unit  level,  chartered  organizations  that  use  the  Scouting  program  provide  meeting 
places  and  often  furnish  program  materials  and  other  facilities.  Youth  members  help  to  pay  their 
own  way  by  paying  dues  to  their  pack,  troop,  team,  or  post  treasuries  and  through  approved 
money-earning  protects. 

Membership  since  1910  totals  more  than  85  million.  As  of  December  31,  1992.  membership 
was  5.339.81 3. 


Youth  Members 

Tiger  Cubs  367.549 

Cub  Scouts  952.797 

Webelos  Scouts  790.190 

Lone  Cub  Scouts  97 

Boy  Scouts  914.052 

Varsity  Scouts  61 .285 

Lone  Boy  Scouts  252 

Explorers  367.093 
Learning  lor  Life 

Elementary  120.640 
Middle/junior  high        64.410 

High  school  471,658 

Special  needs  40,305 


Adult  Members 

Cub  Scout  leaders  576,225 

Lone  Cub  Scout  leaders  56 

Boy  Scout  leaders  422,063 

Varsity  Scout  leaders  20. 1 08 
Lone  Boy  Scout  lead  -  -s  121 
Explorer  leaders  84.252 

Council  Scouters  69.633 

Learning  for  Life  leaders 

Elementary  3,114 

Middle/|unior  high  1.602 

High  school  7.832 

Special  needs  4,479 

1.189.485 


Units 

Cub  Scout  packs 
Boy  Scout  troops 
Varsity  Scout  teams 
Explorer  posts 
Learning  tor  Life 

Elementary 

Middle/junior  high 

High  school 

Special  needs 


51.996 

44.515 

6.211 

20.323 

883 

526 

2.213 

1.562 

128  229 


4  150.328 


1993  Printing 


59 


BOY  SCOUTS  OF  AMERICA 


External  Communications 

1325  West  Walnut  Hill  Lane 

RO.  Bo»  152079.  Irving.  Texas  75015-2079 

Telephone  214-580-2000 


FACT  SHEET 


COMMUNITY  ORGANIZATIONS  AND 
THE  BOY  SCOUTS  OF  AMERICA 


HOW 

COMMUNITY 

ORGANIZATIONS 

USE  THE 

SCOUTING 

PROGRAM 


PURPOSE  That  the  purpose  of  this  corporation  shall  be  to  promote,  through  organization  and  cooper- 

ation with  other  agencies,  the  ability  of  boys  to  do  things  for  themselves  and  others,  to 
train  them  in  Scoutcraft,  and  to  teach  them  patriotism,  courage,  self-reliance,  and  kindred 
virtues,  using  the  methods  which  are  now  in  common  use  by  Boy  Scouts. 

Sec.  3.  federal  charter.  Boy  Scouts  of  America 
June  15,  1916,  by  the  United  States  Congress 

CHARTERS  Two  kinds  of  charters  are  issued  by  the  Boy  Scouts  of  America:  one  to  community  organi- 

zations, and  the  other  to  local  BSA  councils.  The  first  enables  community  groups  to 
use  the  Scouting  program  under  their  own  leadership  as  a  service  to  their  children,  youth, 
and  families.  The  other  empowers  local  councils  to  help  chartered  organizations  effec- 
tively use  the  Scouting  program  and  to  expand  the  use  of  the  program  to  other  commu- 
nity groups. 

Schools,  community  and  religious  organizations,  and  groups,  with  the  help  of  the  BSA, 
organize  Cub  Scout  packs.  Boy  Scout  troops,  varsity  Scout  teams.  Explorer  posts,  and 
Career  Awareness  posts  for  children  and  youth.  They  manage  these  units  and  control 
the  program  of  activities  to  support  the  goals  and  objectives  of  the  chartered  organiza- 
tions. When  establishing  a  new  unit  these  two  important  actions  must  be  taken  to  ensure 
a  quality  Scouting  program: 

1.  Selecting  leadership.  The  head  of  the  chartered  organization  appoints  a  chartered 
organization  representative  to  provide  leadership  in  the  selection  of  a  committee  of 
adults  that  will  provide  overall  supervision  for  the  unit's  program.  The  committee 
selects  the  adult  unit  leaders  who  work  with  the  youth.  The  chartered  organization 
representative  is  also  a  voting  member  of  the  local  council  and  may  serve  as  a  mem- 
ber of  the  district  committee. 

2.  Providing  a  meeting  place  and  promoting  a  good  program.  The  chartered  organi- 
zation arranges  for  adequate  meeting  facilities  for  the  unit  and  promotes  through 
its  committee  the  full  use  of  the  program,  including  outdoor  experiences,  advance- 
ment, recognitions,  and,  in  particular.  Scouting's  values. 

HOW  THE  BSA         To  support  more  than  124,628  Scouting  units  owned  and  operated  by  chartered  organi- 

SUPPORTS  THE       zations,  more  than  395  BSA  councils  provide  professional  counseling  and  administra- 

COMMUNITY  tion.  commissioner  service,  training  for  leaders,  camping  and  outdoor  facilities,  program 

ORGANIZATION       material  and  literature,  planning  tools,  and  other  program  aids.  Councils  also  maintain 

records  on  units  and  their  membership,  provide  rank  certificates  and  merit  badge  cards, 

and  maintain  service  centers  where  badges,  insignia,  literature,  and  other  helps  may 

be  obtained. 

In  addition,  annual  charter  review  conferences  are  conducted  by  council  representa- 
tives with  chartered  organization  personnel  to  evaluate  how  effectively  the  Scouting  pro- 
gram is  being  delivered  and  how  it  may  be  improved. 


60 


A  Sampling  of  Chartered  Organizations  Serving  Children,  Youth, 
and  Families  with  the  Program  of  the  Boy  Scouts  of  America 


BUSINESS  AND  INDUSTRY 

Aluminum  Company  of  America 

AT&T 

Amencan  Airlines.  Inc. 

Amoco  Corporation 

Burlington  Northern,  Inc. 

Corning  Glass  Works 

Dow  Chemical  Co. 

Eastman  Kodak  Co. 

Ford  Motor  Co 

General  Electric  Co. 

General  Motors  Corp. 

Goodyear  Tire  and  Rubber  Company 

Hewlett-Packard  Co. 

Honeywell.  Inc. 

International  Business  Machines  Corp. 

J.  C.  Penney  Company.  Inc. 

McDonnell-Douglas  Corp. 

PPG  Industries,  Inc. 

Rockwell  International  Corp. 

Tandy  Corp. 

Uptohn  Co. 

USX  Corporation 

Westmgnouse  Electric  Corp. 

COMMUNITY 

Air  Force  Association 

Alpha  Phi  Alpha 

American  Bar  Association 

Amencan  Legion.  The 

Amencan  Red  Cross 

AMVETS  (Amencan  Veterans  ot  WWII.  Korea, 

and  Vietnam) 
Boys  Clubs  of  America 
Civil  Air  Patrol 
Civitan  International 
Community  Centers 
Conservation  Clubs 
OAV  (Disabled  Amencan  Veterans) 
Eagles.  Fraternal  Order  of  (F.O.E.) 
Economic  Opportunity  Commisawn 
Elks.  Benevolent  and  Protective  Order  of 

(aRO-E.) 
Exchange  International 
Farm  Bureau  Federation.  American 
Fire  Chiefs.  International  Association  of 

PARC) 
Fire  Departments 
4-H 

Future  Farmers  of  America  (FF.A.) 
Grange.  National 
Hospitals.  Medical  &  Professional 

Engineering  Societies 
Housing  Protects 

Indian  Affairs.  American  Association  on 
Indian  Tnbal  Councils 
Izaak  Walton  League  of  America 
Jaycees.  United  States 
Job  Corp  Centers 
Kiwanis  International 
Knights  of  Pythias 
Lions  International 
Masonic  Order 

Eastern  Star.  Order  of 
Military  Reserves 
Moose,  Loyal  Order  of 
National  Guard.  Army  and  Air 
Neighborhood  Associations 
Odd  Fellows  Independent  Order  of 
Optimist  International 
Parents  Withoul  Partners 
Police  Departments 


Power  Squadrons 

Rotary  International 

Roundtable  International 

Runtan  National 

Sertoma  International 

Sons  of  the  Amencan  Revolution 

US  Air  Force 

US.  Army 

US  Coast  Guard 

US  Coast  Guard  Auxiliary 

U.S  Mann*  Corp* 

US  Navy 

VFW  (Veterans  of  Foreign  Wan)  and 

Auxiliaries) 
Western  Electric 
Women's  Club* 

YMCA  (Young  Men's  Christian  Association) 
YMHA  (Young  Men's  Hebrew  Association) 
YWCA  (Young  Women's  Christian 

Association) 

EDUCATION 

Independent  Schools.  National  Association  of 
PTA  (National  Congress  of  Parents  and 

Teachers) 
Private  School* 
Public  School* 

LABOR 

AFL-CIO  (Amencan  Federation  of  Labor  and 

Congress  of  Industnal  Organization) 
Automobile.  Aerospace  &  Agricultural 

Implement  Workers  of  America 

International  Union.  United 
Boilermakers.  Iron  Ship  Builders. 

Blacksmiths.  Forgers  and  Helpers  of 

America.  International  Brotherhood  of 
Communications  Workers  of  America 
Electronic  Electrical.  Salaned.  Machine 

and  Furniture  Workers.  International 

Union  of 
Electrical  Workers.  International 

Brotherhood  of 
Engineers.  International  Union  of  Operating 
Rre  Fighters.  International  Association  of 
Food  and  Commercial  Workers 

International  Union,  United 
Glass.  Pottery.  Plastic*  and  Allied  Workers 

International  Union 
Industnal  Workers  of  America.  International 

Union.  Allied 
iron  Workers.  International  Association  of 

Bndge.  Structural  and  Ornamental 
Letter  Carriers,  National  Association  of 
Machinists  and  Aerospace  Workers, 

International  Association  of 
McJders  and  Allied  Workers  Union, 

International 
Oil.  Chemical  and  Atomic  Workers 

International  Union 
Paperworkers  International  Union.  United 
Plumbing  and  Pipe  Fitting  Industry  of  the 

United  States  and  Canada.  United 

Association  of  journeymen  and 

Apprentices  of  the 
Postal  Workers  Union.  Amencan 
Rubber.  Cork.  Linoleum  and  Plastic 

Workers  of  America.  United 
Steefworkers  of  Amenca.  United 
Teachers.  Amencan  Federation  of 
United  Industnal  Workers  of  North 

America.  Seafarers  International  Union  of 

North  Amenca 


Education  Association.  National 

Teamsters  Chauffeurs.  Warehousemen,  and 

Helpers  of  Amenca.  imemational 

Brotherhood  of 

REUGIOUS 

African  Methodist  Episcopal  Church 
African  Methodist  Episcopal  Zion  Church 
Armenian  Church  of  North  Amenca 
Assembly  of  God  Church 
Baha'i  Faith 
Baptist  Churches 

Amencan  Baptist  Association 

Amencan  Baptist  Churches  in  USA 

General  Association  of  Regular  Baptists 

Primitive  Baptist 
Baptist  Conventions 

National  Baptist  Convention  of  Amenca 

National  Baptist  Convention  USA.  inc. 

Progressive  National  Baptist 
Convention.  Inc. 

Southern  Baptist  Convention 
B'nai  B'rith 

Brethren.  Church  of  the 
Buddhist  Churches  ot  Amenca 
Byzantine  Rite  Catholic  Church 
Catholic  Church  (Roman) 
Catholic  Organizations 

Catholic  Parent  Organization.  National 
Forum  of 

Holy  Name  Society  (Roman  Catholic) 

Knights  of  Columbus 

Catholic  Youth  Organization 

Catholic  War  Veterans 

Serra  International 
Christian  Church  (Disciples  of  Christ) 
Christian  and  Missionary  Alliance  Church 
Church  of  Christ 
Church  of  Jesus  Chnst  of  Latter-day  Saints 

(Mormon) 
Church  of  God 
Congregational  Church 
Episcopal  Church.  The 
Evangelical  Churches 
Federation  of  Islamic  Associations  >n  the  US 

and  Canada 
First  Church  ol  Chnst.  Scientist 
Greek  Orthodox 
Jenovan  j  Witnesses 
Jewish  Synagogues  and  Centers 

Jewish  War  Veterans 
Lutheran  Churches 

Evangelical  Lutheran  Church  in 

Amenca.  The 

Lutheran  Church.  Missoun  Synod.  The 
Mennomte  Church 
Methodist  Church,  The  Unrted 
Moravian  Church  m  Amenca 
Nazarene,  Church  ot  the 
Orthodox  Churches 
Pentecostal  Churches 
Presbyterian  Church  (USA) 

Cumberland  Presbyterian  Church 
Reformed  Church  in  Amenca 
Religious  Society  ot  Fnends  (Ouakers) 
Reorganized  Church  of  Jesus  Chnst  ol  Latter 

Day  Saints 
Salvation  Army.  The 
Seventh  Day  Adventists 
Unitanan  Universalis!  Association 


1992  Printing 


61 


CHILD  OWE 
&  NGGLGCT 

a 

TUC 

JOURNAL 


Official  Publication  of  the  International  Society 
for  Prevention  of  Child  Abuse  and  Neglect* 


"The  Youth  Protection  Program 
of  the  Boy  Scouts  of  America" 

Lawrence  F.  Potts 
Boy  Scoffs  of  America,  Irving,  Texas 


Reprinted  from  Volume  1 6,  Number  3,  1 992 
Used  witfi  Permission 


No  46-005 
1992  Printing 


nr\     /- r\r\     r\  r\  . 


62 


INTRODUCTION 

OVER  THE  COllRSK  of  its  Kd-year  history,  (he  Ikiv 
Scouts  of  America  has  become  a  part  of  the  fabric  of 
American  society.  The  Scouting  program  extends 
into  almost  even  city  and  town  in  the  nation. 
involving  millions  of  young  people  and  adult  volun- 
teers each  year.  In  fact,  nearly  JO  percent  of  the 
American  youth  population  comes  into  contact  with 
Scouting  every  year. 

The  nearly  universal  presence  and  availability  of 
Scouting  presents  lx>th  problems  and  opportunities 
for  the  organization.  Much  like  the  public  schools. 
Scouting  must  confront  and  deal  with  many  of  the 
social  problems  that  plague  our  contemporary  cul- 
ture. At  the  same  time,  however,  the  boy  Scouts  of 
America  (USA),  as  a  well-organized,  disciplined,  and 
highly  structured  youth-sen  inn  organization,  is  in  a 
strong  position  to  have  a  positive  impact  on  the 
pressing  social  problems  of  the  day. 

The  USA  has  a  long  tradition  of  addressing  social 
problems  within  the  context  of  building  character, 
citizenship,  and  fitness  among  young  people. 
Through  Scouting,  young  lioys  can  learn  coping 
skills  that  will  help  them  navigate  through  some  of 
the  hazards  of  contemporary  American  life 

In  the  early  and  mid-1980s,  the  national  leader- 
ship of  the  BSA  identified  five  compelling  societal 
problems  that  posed  challenges  anil  opportunities 
for  the  USA  to  have  a  positive  impact.  Referred  to  by 
the  BSA  as  the    Five  I'nacceptables."  the  problems 
are:  drug  abuse,  hunger,  illiteracy,  youth  unemploy- 
ment, and  child  abuse,  including  child  sexual  abuse. 


BOY  SCOUTS  OF  AMERICA— 
THE  ORGANIZATION 

The  USA  is  made  up  of  nearly  t(X)  local  councils 
accredited  by  the  national  USA.  Each  local  council  is 
incorporated  as  a  nonprofit  organization  and  has  its 
own  staff  and  hoard  of  directors.  The  local  councils 
are  responsible  for  chartering  sponsors,  such  as 
schools,  churches,  synagogues,  and  service  organi- 
zations, which  essentially  own  and  o|X-rate  the 
Scouting  program  lor  th—'r  own  youth. 

The  national  BSA  develops  the  programs,  estab- 
lishes policies  and  procedures,  provides  leadership 
training  for  Scouting  professionals  and  designs  lead- 
ership programs  tor  volunteer  leaders.  The  national 
BSA  also  operates  special  high-adventure  areas, 
such  as  I'hilmont  Scout  Ranch  in  the  mountains  of 
New  Mexico  and  the  Flonda  National  High-Adventure 
Sea  Base  Additionally,  the  national  organization 
provides  marketing  support  and  produces  and 


distributes  a  vast  array  of  educational  materials  and 
Scouting  supplies. 


BSA  Confronts  Child  Sexual  Abuse 

In  the  early  and  mid- 1980s,  child  sexual  abuse 
burst  into  the  public  consciousness  by  way  of 
national  media  coverage  of  dramatic  allegations  in 
communities  in  Southern  California  and  Minnesota. 
These  incidents  and  the  subsequent  media  coverage 
did  much  to  heighten  the  public  s  awareness  of  child 
sexual  abuse  as  a  widespread  societal  problem 

Recognizing  that  BSA  memlx'rs.  like  the  rest  of 
society,  could  lx'  affected  by  this  widespread 
problem,  the  national  leaders  of  the  Boy  Scouts  of 
America  committed  the  BSA  to  taking  a  leadership 
role  in  developing  strategies  to  deter,  if  not  prevent, 
all  forms  of  child  abuse,  including  sexual  abuse. 
BSA  officials  reviewed  the  literature  on  child  sexual 
abuse  and  consulted  with  nationally  recognized 
experts  for  advice  and  guidance. 

To  address  child  sexual  abuse  in  its  Youth 
Protection  Program,  the  BSA  drew  upon  Dr.  David 
Finkelhor's  four  preconditions  for  child  sexual  abuse 
as  the  issues  to  be  dealt  with  in  the  program.  Those 
four  preconditions  are:  1 1  An  offender  with  the  moti- 
vation to  sexually  abuse:  1)  the  molester  must  over- 
come internal  inhibitions  against  abusing;  3'  the 
molester  must  overcome  external  harriers  to  abus- 
ing; and  -t)  the  molester  must  overcome  resistance 
bv  the  child. 


Education  at  Many  Levels 

Because  of  the  BSA  s  multilayered  organizational 
structure,  education  aimed  at  the  detection  and  pre- 
vention of  child  abuse  had  to  lx*  undertaken  at 
many  different  levels,  beginning  with  the  "500 
people  employed  full-time  in  Scouting  across  the 
country.  Through  this  initial  educational  program. 
BSA  employees  were  trained  to  recognize  the  differ- 
ent tonus  of  child  abuse,  including  child  sexual 
abuse,  and  the  methods  cmploved  bv  molesters. 
Each  BSA  employee  also  was  made  aware  of  the 
BSA's  policies  and  procedures  for  handling  reports 
or  allegations  of  child  abuse.  The  policies  and  pro- 
cedures are  spelled  out  in  an  official  BSA  publica- 
tion for  professional  staff  and  key  volunteers. 
Perhaps  most  importantly,  the  training  program  sent 
a  message  to  even-  BSA  employee  that  child  abuse 
was  an  issue  that  the  BSA  would  deal  with  openly 
and  aggressively. 

Training  the  BSA  staff  and  support  personnel  was 
important,  but  developing  a  program  to  train  the 


63 


more  than  I  million  adults  who  serve  as  Scouting 
volunteers  each  year  was  an  even  greater  challenge. 
An  initial  pamphlet  entitled  Child  Abuse.  Lei  s  Talk 
About  II  was  published  and  distributed  beginning  in 
1986.  It  contained  a  strong  statement  by  the  BSA 
officially  expressing  the  organization's  concern 
about  child  abuse  generally  and  child  sexual  abuse, 
specifically.  The  BSA  also  produced  and  distributed 
a  training  program  for  adult  volunteers  that  included 
a  90-niinute  videotape  and  printed  learning  guide. 
The  training  program  was  designed  in  such  a  way 
that  it  could  lie  used  by  any  youth-serving  agency. 
given  the  widespread  nature  of  the  problem.  This 
training  packet  was  revised  in  1990.  The  revised 
video  interweaved  dramatizations  of  typical  child 
sexual  abuse  situations  with  comments  by  members 
of  the  BSA's  Youth  Protection  Advisory  Panel,  and 
the  content  was  broadened  to  lie  relevant  to  parents, 
as.  well  as  volunteer  leaders.  More  than  13  million 
adult  volunteers  went  through  the  training  in  1990. 

Any  adult  who  attends  the  USA  s  special  programs 
must  go  through  the  Youth  Protection  tnuning  pro- 
gram, and  a  special  training  program  was  developed 
for  adults  and  youths  who  attend  the  National  Camp 
School.  In  addition,  the  revised  Bay  Seoul  handbook 
as  well  as  the  handbooks  for  the  three  Cub  Scout 
levels,  include  a  pull-out.  2-i-page  booklet.  How  to 
protect  vottr  children  from  child  abuse  and  drug 
abuse  A  parent's  guide.  The  guide  helps  families 
develop  their  self-protection  skills. 

The  Scout  Handbook  is  one  of  the  most  widely 
distributed  Nx)ks  in  the  world  The  pull-out  guide 
also  in  included  in  the  official  USA  Scoutmaster 
bandlxxik  as  is  a  chapter  on  the  BSA  s  Youth 
Protection  Program  All  told,  more  than  3-5  million 
copies  of  the  Parent's  Guide  have  been  distributed 
by  the  BSA  in  just  the  first  IS  months  of  publication, 
making  it  perhaps  the  most  widely  distributed  single 
piece  of  youth  protection  literature. 

After  reviewing  the  materials  available  outside  the 
BSA.  the  organization  took  an  even  bolder  step  with 
an  educational  video  aimed  at  liovs  ages  10  to  1-t. 
Called  A  lime  to  tell,  the  29-minute  educational  video 
explores  the  problem  of  sexual  molestation  through 
the  dramatization  of  several  recognized  risk  factors: 
the  presence  of  a  stepfather:  friends  of  the  family: 
older  youths  who  molest  younger  ones.  The  video, 
which  is  intended  to  be  shown  at  any  gathering  of 
appropriate  age  youth,  introduces  what  may  Ix-  a 
unique  educational  concept — The  three  Rs~  ot 
youth  protection: 


*  Resist  attempts  of  child  molesters.  Resistance  will 
stop  most  molestations,  since  very  few  molesters 
will  resort  to  force. 

■ft  Report  individuals  who  attempt  to  molest  you  to 
your  parents  or  other  trusted  adult. 

A  "presenter  s  orientation"  that  runs  just  under  5 
minutes  precedes  the  presentation  of  A  time  to  tell 
More  than  3.500  copies  of  the  video  were  distrib- 
uted in  the  first  year,  and  the  BSA  has  encouraged 
duplication  and  even  wider  distribution  of  the  edu- 
cational video,  both  within  and  outside  ot  Scouting 
It  also  has  lx*en  distributed  by  satellite  to  public  and 
educational  television  stations  across  the  country, 
which  in  many  instances  have  aired  it  over  their  local 
and  regional  systems.  Another  educational  video 
aimed  at  Cub  Scouts  (6-  to  9-year-olds)  was  distrib- 
uted in  the  fall  of  1991.  A  future  protect  will  address 
adolescents,  and  that  program  will  be  coeducational. 


INTERNAL  SAFEGUARDS 

While  the  BSA  recognizes  that  there  is  no  proven 
method  for  screening  out  potential  child  molesters, 
the  organization  has  taken  steps  to  create  a  hostile 
environment  for  them.  These  internal  barners  begin 
with  the  volunteer  leader  selection  pr<xess  The  BSA 
throughout  its  long  history  has  maintained  that 
Scouting  is  essentially  a  local  activity  and  that  the 
sponsoring  organizations  and  parents  ot  Scouts  are 
in  the  best  position  to  know  and  select  their  volun- 
teer adult  leaders.  The  volunteer  leaders  ot  the 
packs,  troops,  and  posts  (the  scouting  units i  are 
selected  by  the  I'nit  Committee,  with  the  concur- 
rence of  the  chartered  organization. 

A  standard  two-part  application  form  specifically 
asks  whether  the  applicant  has  been  arrested  for 
child  abuse  or  other  crimes.  The  fonn  also  asks  tor 
previous  home  addresses  and  references.  A  personal 
interview  is  required,  and  the  application  must  Ix- 
approved  by  the  head  of  the  chartered  organization. 

The  BSA  national  office,  as  it  has  for  more  than  50 
years,  also  maintains  a  file  on  indiv iduals  who  tor 
various  reasons  are  ineligible  to  Ix.'  accepted  into 
Scouting.  All  registrations  are  checked  annuallv 
against  the  file.  Although  applicants  conceivably 
might  lie  in  answering  the  questions,  the  application 
form  puts  them  on  notice  that  the  organization  is 
aggressively  hostile  toward  molesters. 


#  Recognize  strategies  anil  situations  used  by  child 
molesters  that  can  lead  to  attempted  molestation. 


64 


Policies  That  Create  Barriers 

In  addition  to  the  educational  components,  the 
USA  has  established  policies  that  are  intended 
to  protect  youth  from  child  abuse.  Examples  of 
these  policies  are: 

*  Two-deep  leadership.  Two  registered  adult  leaders 
or  one  registered  adult  leader  and  a  parent  of  a 
participant,  one  of  whom  must  lie  21  years  of  age 
or  older,  are  required  on  all  trips  and  outings. 
The  chartered  organization  is  responsible  for 
ensuring  that  sufficient  leadership  is  provided  for 
all  activities. 

*  Unaccompanied  activities  between  an  adult 
leader  and  a  youth  member  are  prohibited.  In  sit- 
uations that  require  personal  conferences,  such  as 
a  Scoutmaster's  conference,  the  meeting  must  be 
conducted  in  view  of  other  adults  and  youths. 

*  Respect  for  privacy.  Leaders  are  expected  to 
respect  the  privacy  of  Scouts  during  activities 
that  require  changing  clothes  and  dressing. 
Leaders  also  should  protect  their  own  privacy 
in  similar  situations. 

*  Separate  accommodations.  When  camping,  no 
youth  is  permitted  to  sleep  in  the  tent  of  an  adult 
other  than  his  own  parent  or  guardian. 

if  Proper  preparation  for  high-adventure  activities. 
Activities  with  elements  of  risk  should  never  lie 
undertaken  without  proper  preparation,  equip- 
ment, supervision,  and  safety  measures. 

*  Appropriate  attire  is  required  for  all  activities. 
"Skinnv  dipping."  for  example,  is  not  appropriate 
as  part  of  the  scouting  program 

*  Secret  organizations  are  prohibited   All  aspects  of 
the  boy  Scout  program  are  open  to  observation 
by  parents  and  leaders. 

»  Constructive  discipline.  Discipline  used  in  Scout- 
ing should  lx-  constructive  and  reflect  Scouting's 
values.  Corporal  punishment  is  never  permitted. 

*  Hazing  is  prohibited  Physical  hazing  and  initia- 
tions are  prohibited  and  may  not  lx-  included  as 
part  of  any  Scouting  activity. 

*  Junior  leader  training  and  supervision.  Adult  lead- 
ership must  monitor  and  guide  (he  leadership 
techniques  used  by  junior  leaders  and  see  that 
USA  policies  are  followed. 


Prompt  Reporting  and  Action 

Despite  the  lx*st  efforts  of  adult  leaders  and  parents, 
potential  molesters  still  may  succeed  in  getting 
through  the  net  and  incidents  of  child  sexual  abuse 
still  may  <xcur.  because  that  possibility  exists, 
youths  are  instructed  specifically  and  unequivmally 
to  report  any  incident  immediately  to  an  adult 
leader  or  other  adult  he  feels  he  can  trust. 

Any  adult  leader  who  receives  a  report  of  child 
abuse  is  required  to  notify  the  local  Scout  execu- 
tive immediately,  and  the  executive  is  required  to 
report  the  information  to  the  local  child  protective 
services  office  and  immediately  remove  the  alleged 
molester  from  all  Scouling-related  activities  until 
the  case  is  resolved. 


Delivery  System  Is  Key 

Perhaps  the  most  important  aspect  of  the  BSA 
Youth  Protection  Program  is  the  organization  s  highlv 
developed  and  effective  delivery  system.  Once  a 
program  or  policy  is  adopted  by  the  national  head- 
quarters, the  people  and  systems  are  already  in 
place  to  communicate  and  implement  them  at  even 
level  of  Scouting.  This  well-developed  delivery  sys- 
tem enables  the  BSA  to  serve  -t.l  million  youths  and 
1.3  million  adult  volunteers  in  more  than  130.000 
Scouting  units  across  the  country.  Continuing 
reports  from  the  field  indicate  that  the  Youth 
Protection  Program  has  Ix-en  implemented  aggres- 
sively and  enthusiastically  by  the  39"  local  councils 
and  their  chartered  organizations,  or  sponsors. 


RESULTS 

The  USA  has  no  accurate  statistics  on  the  inci- 
dence of  child  sexual  abuse  in  Scouting,  but  all  the 
available  indicators  suggest  that  the  problem  is  far 
less  than  in  the  population  at  large.  At  this  point, 
there  is  only  anecdotal  evidence  concerning  the 
effectiveness  of  the  BSA  Youth  Protection  Program, 
but  parents,  volunteers,  and  youth  strongly  support 
it.  As  the  BSA  had  hoped,  the  impact  to  some- 
degree  has  spread  even  beyond  Scouting.  In  some 
cities,  for  example,  local  councils  are  actively  work- 
ing with  other  youth-serving  organizations  to  help 
them  develop  similar  programs.  In  some  cases, 
youths  have  felt  encouraged  to  come  forward  and 
report  molesters.  In  one  Midwest  city,  for  example, 
several  youths  turned  in  a  molester  after  they 
watched  the  video.  .1  time  to  tell.  As  a  result,  the 
local  district  attorney  is  now  using  the  video  with  all 
victims  of  child  sexual  abuse  seen  there. 


65 


CONCLUSION 

In  attacking  the  problem  of  child  abuse,  the  BSA 
has  implemented  a  multi-part  strategy'  that  encom- 
passes the  following  key  elements: 

1.  Educating  Scout  volunteers,  parents,  and  Scouts 
themselves  to  aid  in  the  recognition,  reporting 
and  deterrence  of  child  abuse. 

2.  Establishing  leader  selection  procedures  to  prevent 
offenders  from  entering  the  BSA  leadership  ranks. 

3.  Establishing  policies  that  create  barriers  for  child 
abuse  within  the  program. 


4.  Encouraging  Scouts  to  report  improper  behavior 
in  order  to  identify  offenders  quickly. 

5.  Swift  removal  and  reporting  of  alleged  offenders. 

The  BSA  also  established  a  Youth  Protection 
Advisory  Panel,  made  up  of  five  leading  experts  in 
the  field  of  child  abuse,  to  assist  the  organization  in 
keeping  the  Youth  Protection  Program  up  to  date. 

The  BSA  Youth  Protection  Program  demonstrates 
that  with  committed  leadership,  a  well-designed, 
multi-faceted  strategy,  an  effective  delivery  system, 
and  a  tradition  of  discipline  within  the  organization, 
today's  youth  service  agencies  have  an  important 
role  in  assisting  their  members  in  not  becoming 
victims  of  sexual  abuse. 


NOTE.  Repnnl  requests  to  Lawrence  F  Potts.  Administrative  Group  Director, 
Boy  Scouts  ol  America.  1 325  Walnut  Hill  lone,  Irving.  TX  75038  3096 


66 

Mr.  Edwards.  The  last  member  of  the  panel  to  testify  is  Col. 
Thomas  H.  Handley,  who  is  legal  counsel,  and  with  him  is  Renova 
Williams,  director  of  personnel,  Civil  Air  Patrol  from  Montgomery, 
AL. 

You  may  proceed. 

STATEMENT  OF  COL.  THOMAS  A.  HANDLEY,  LEGAL  COUNSEL, 

CIVIL  AIR  PATROL 

Colonel  Handley.  Thank  you,  Mr.  Chairman,  and  members  of 
the  subcommittee.  We  appreciate  the  opportunity  to  appear  and 
testify.  I  will  try  to  be  very  brief  in  my  remarks. 

Many  of  the  views  that  we  have  on  this  legislation  have  been  an- 
nounced by  Mr.  Potts.  The  Civil  Air  Patrol  is  chartered  by  the  Con- 
gress under  title  36  as  a  Federal  corporation.  It  also  serves  as  the 
proud  auxiliary  of  the  U.S.  Air  Force. 

In  its  operations,  it  performs  over  85  percent  of  all  the  inland 
search  and  rescue.  It  is  now  heavily  engaged  in  counternarcotics 
activities,  in  passive  surveillance  and  reporting;  disaster  relief, 
playing  an  active  role  in  many  of  the  disasters,  including  the  floods 
that  now  plague  the  central  part  of  this  country. 

The  third  mission  that  we  perform  under  the  charter  of  the  Con- 

fress  is  that  of  an  active  cadet  program.  We  have  over  20,000  ca- 
ets  under  the  supervision  of  about  30,000  senior  members.  We  call 
our  adult  volunteers  "senior  members".  We  are  an  all-volunteer 
program.  We  are  funded  under  title  10  under  the  Armed  Services 
Committee  to  a  certain  extent  for  logistics  support. 

Civil  Air  Patrol  has  been  involved  in  the  child  abuse  issue  for 
many  years.  In  1988,  we  began  a  program  with  the  cooperation  of 
the  FBI  to  conduct  a  nationwide  fingerprint  screening  program.  We 
have  been  engaged  in  that  program  since  then.  And  at  the  present 
time,  all  of  our  senior  members  are  required  to  have  a  fingerprint 
submitted  to  the  FBI. 

We  have  established  a  procedure  within  our  organization  to  re- 
view the  records,  which  includes  both  arrests  and  convictions.  And 
we  exercise  a  quality  control  review  of  those  records  and  it  has 
been  a  very  valuable  program. 

We  greatly  support  the  legislation.  We  would  like  to  add  that 
there  are  certain  things  that  we  would  suggest  it  include,  such  as 
a  provision  to  include  arrest  records  along  with  convictions. 

It  has  been  our  experience  that  in  certain  individuals  you  will 
find  a  pattern  of  arrests  for  such  things  as  indecent  exposure  or  as- 
sorted type  of  sexual  things  with  no  disposition;  and  that  indicates 
a  pattern  of  sexual  problems.  I  think  if  the  legislation  stops  at  only 
convictions,  I  think  you  will  deprive  the  evaluators  of  a  very  valu- 
able tool  in  screening  out  people  who  are  what  we  call  the 
pedophiles. 

And  we  have  found  in  our  review  of  this  subject,  that  there  are 
some  very,  very  dedicated  pedophiles  out  there  that  infiltrate  youth 
organizations,  volunteers  primarily,  such  as  the  NAMBLA,  the 
Man-Boy  Love  Association,  which  operates  under  specific  charter 
and  they  attempt  to  devise  ways  to  infiltrate  one  organization  after 
another  to  have  sex  with  young  boys. 

These  organizations  require  a  careful  screening  that  I  think  this 
bill  will  help  provide. 


67 

The  other  thing  that  we  think  the  committee  ought  to  consider 
is  somehow  permitting  youth  organizations,  particularly  the  volun- 
teers, to  exchange  membership  lists  or  lists  of  members  who  we 
have  disqualified  for  sexual  misconduct.  Since  these  pedophiles  are 
known  to  go  from  organization  to  organization,  if  we  as  the  Civil 
Air  Patrol  have  had  a  case  where,  although  not  prosecuted  as  a 
criminal  offense,  that  we  have  shown  that  they  are  inclined  to  mo- 
lest a  child,  we  keep  a  record  of  that.  It  would  be  very  helpful  if 
we  would  have  the  freedom  to  exchange  that  information  with  the 
other  volunteer  organizations.  We  think  such  a  provision  would  be 
very  helpful  in  the  screening  of  pedophiles  and  the  prevention  of 
child  abuse. 

I  totally  support  or  we  totally  support  Mr.  Potts'  view  that  the 
bill  will  establish  a  new  standard  of  care  in  this  industry.  I  have 
had  the  responsibility  for  monitoring  litigation  of  the  few  cases  we 
have  had.  And  they  are  devastating,  because  the  parents  of  chil- 
dren who  are  abused  now,  in  addition  to  prosecuting  the  individ- 
uals, have  turned  to  civil  remedies  against  the  youth  organizations; 
and  under  the  plaintiffs  bar,  they  have  proceeded  to  have  a  whole 
series  of  theories  of  liability  under  which  claims  are  made  for  neg- 
ligent employment  and  negligent  retention. 

These  cases  are  tremendously  emotional  and  they  have  resulted 
in  multimillion-dollar  judgments,  settlements  and  so  on.  I  think  the 
committee  ought  to  know  that  the  insurance  industry  at  this  time 
is  rapidly  withdrawing  from  this  market. 

We  are  losing  our  insurance  in  December  of  this  year  for  what 
they  call  SAME,  sex  and  molestation  exposure.  The  GL,  or  general 
liability,  market  has  now  determined  that  this  is  an  unpredictable, 
unrateable  type  of  risk  that  they  simply  don't  want  to  cover.  I 
think  the  end  result  is,  if  you  cannot  insure  this  risk,  it  will  do 
many  things  to  organizations  such  as  put  them  out  of  business. 

And  I  think  it  would  be  well  if  this  committee  might  look  and 
see  what  the  options  are  for  organizations  that  want  to  continue  in 
business  when  the  insurance  is  simply  not  there. 

Our  volunteers  are  not  covered  when  they — if  the  insurance  is 
simply  not  in  place.  So  having  said  that,  we  support  the  legislation 
and  would  be  glad  to  respond  to  questions. 

I  think  the  committee  may  want  to  hear  from  Ms.  Williams,  who 
can  respond  and  describe  how  we  process  the  fingerprint  cards  and 
what  the  problems  are  on  the  turnaround  time  and  so  on. 

So  at  this  time  with  the  chairman's  consent,  I  would  like  to  have 
Ms.  Williams  address  that. 

[The  prepared  statement  of  Colonel  Handley  follows:] 

Prepared  Statement  of  Col.  Thomas  A.  Handley,  Legal  Counsel,  Civil  Air 

Patrol 

Mr.  Chairman  and  members  of  the  committee: 

Thank  you  for  the  opportunity  to  appear  before  this  Subcommittee  to  express  Civil 
Air  Patrol's  views  on  the  proposed  legislation. 

Congresswoman  Schroeder  and  cosponsors  of  this  legislation  are  to  be  commended 
for  their  recognition  of  a  serious  societal  problem  and  for  their  leadership  on  behalf 
of  this  nation  s  most  precious  commodity,  its  children  and  youth.  Volunteer  organi- 
zations such  as  CAP  have  long  been  concerned  with  protecting  our  youth  from  a  va- 
riety of  harm.  This  legislation  will  address,  at  least  in  part,  a  major  concern  of  child 
abuse.  We  are  greatly  encouraged  that  this  problem  is  now  receiving  attention  at 
the  highest  levels. 


68 

Civil  Air  Patrol  is  a  nonprofit  corporation  chartered  by  Congress.  It  is  also  des- 
ignated as  an  auxiliary  of  the  United  States  Air  Force.  Congress  has  given  CAP 
three  nationwide  missions  in  its  corporate  charter.  They  are  (a)  emergency  services 
for  communities,  (b)  aerospace  education,  and  (c)  operating  a  cadet  program.  Civil 
Air  Patrol  flies  over  85%  of  all  air  search  and  rescue  missions  in  this  country  each 
year  in  its  Air  Force  auxiliary  role.  It  now  flies  more  hours  on  counter  narcotics  mis- 
sions than  search  and  rescue.  In  addition,  it  assists  states  and  local  communities 
in  natural  disasters,  such  as  the  recent  flooding  in  the  central  states.  Our  cadet 
(youth)  program  has  a  structure  which  exposes  young  people  to  discipline  and  train- 
ing that  helps  prepare  them  for  careers  in  the  military  or  civilian  community.  A  sig- 
nificant number  of  each  entry  class  at  the  Air  Force  Academy  has  prior  CAP  cadet 
training.  Civil  Air  Patrol's  membership  consists  of  some  20,000  cadets  between  the 
ages  of  13  and  18  and  34,000  adult  volunteers. 

Civil  Air  Patrol  has  had  a  long-standing  concern  with  the  problem  of  screening 
its  volunteer  adult  members  who  would  interact  with  its  youth,  i.e.,  its  cadets.  The 
most  significant  method  known  to  date  was  the  examination  of  an  individual's  crimi- 
nal record.  Civil  Air  Patrol  first  had  an  FBI  fingerprint  records  screening  program 
during  World  War  II  which  continued  until  the  early  1960s.  That  screening  was  not 
directly  related  to  the  youth  program,  but  rather  provided  quality  control  over  adult 
members  generally.  Civil  Air  Patrol  resumed  its  FBI  fingerprint  screening  program 
of  adult  members  in  late  1988  primarily  as  a  result  of  concerns  raised  over  its  youth 
program  as  well  as  its  counter  narcotics  activities.  The  national  media  has  made 
everyone  aware  of  the  dangers  involved  in  sex  abuse  of  youth. 

In  addition,  CAP  has,  since  1991,  participated  as  a  member  of  the  National  As- 
sembly's Collaboration  for  Youth's  Task  Force  on  Child  Sexual  Abuse.  One  of  the 
Task  Force's  objectives  has  been  to  seek  effective  ways  to  screen  volunteer  members 
working  with  children  through  collaboration  with  other  national  youth  organiza- 
tions. Other  members  include  the  Scouts,  Salvation  Army,  Big  Brothers  and  Big 
Sisters,  etc. 

Although  not  a  panacea,  FBI  records  screening  is  a  valuable  tool.  For  CAP,  it  was 
a  national  membership  screening  program  that  showed  a  clear  policy  of  child  protec- 
tion against  those  who  had  criminal  records. 

Ironically,  as  the  FBI  screening  program  started,  our  long-time  liability  insurance 
carrier  advised  that  it  was  excluding  CAPs  coverage  for  child  sexual  abuse.  That 
carrier  did  not  care  whether  CAP  had  an  FBI  screening  program  or  not.  It  simply 
wanted  to  be  relieved  of  that  risk  despite  not  having  any  claims. 

Civil  Air  Patrol  implemented  the  FBI  records  screening  for  our  senior  member 
volunteers  in  June  1988,  fingerprinting  all  new  applicants  and  targeting  current 
members  working  with  cadets  for  initial  fingerprinting,  eventually  expanding 
screening  to  all  members,  regardless  of  their  duty  positions.  We  also  imposed  a  dues 
assessment  of  $10.00  per  member  for  a  legal  defense  fund  to  sustain  possible  losses 
resulting  from  child  sexual  abuse  litigation  no  longer  covered  by  our  liability  insur- 
ance ana  to  absorb  the  cost  of  additional  corporate  employees  hired  to  process  fin- 
gerprint cards. 

Since  implementation,  CAP  has  received  over  61,000  fingerprint  cards  from  our 
CAP  volunteers.  Over  55,000  cards  were  forwarded  to  the  FBI  for  screening.  The 
6,000  number  difference  is  the  number  of  cards  we  returned  to  the  members  for  il- 
legible prints,  incomplete  information,  etc.,  which  were  not  returned  to  us.  We  know 
we  lost  6,000  members  who  simply  would  not  go  to  the  trouble  to  get  fingerprinted 
a  second  time  or  return  corrected  cards.  This  does  not  include  the  thousands  who 
simply  decided  it  was  too  much  trouble  and  dropped  out  of  the 
program. 

Of  the  55,000  cards  sent  to  the  FBI,  some  3,600  were  "hits,"  that  is,  they  had 
records  of  some  sort  on  file  at  the  FBI.  Offenses  ranged  from  DUIs  and  youth  mis- 
demeanors by  currently  responsible  citizens  to  rape  and  first  degree  murder.  Out 
of  the  3,600  records,  122  were  determined  to  be  unfit  for  membership  in  Civil  Air 
Patrol — 70  of  these  were  for  sex  offenses.  We  were  obviously  gratified  to  identify 
this  number  of  potential  child  abusers.  The  unknown,  of  course,  is  the  number  of 
sex  offenders  not  identified  because  they  elected  not  to  be  members  rather  than  risk 
identification.  Unfortunately,  they  may  have  gravitated  to  other  youth  organizations 
which  do  not  yet  have  access  to  criminal  records. 

On  the  downside,  the  FBI  fingerprint  screening  program  caused  a  significant  loss 
of  membership  in  both  adults  and  cadets:  the  cadets,  because  of  the  increased  dues, 
and  the  adults  because  of  that  and  other  reasons  such  as  privacy.  Both  the  member- 
ship loss  and  the  uninsured  exposure  caused  CAPs  Board  to  seriously  consider  dis- 
banding the  cadet  program.  But  they  made  the  decision  to  retain  the  cadet  program 
and  attempted  to  seek  means  of  improving  membership  screening  techniques  and 
established  relationships  with  other  youth  programs  facing  similar  problems. 


69 

The  Boy  Scouts,  in  particular,  were  of  tremendous  assistance,  to  the  extent  of 
sharing  their  very  excellent  video  training  tapes  on  child  sexual  abuse.  These  tapes 
are  now  an  integral  part  of  CAPs  training  programs.  Our  collaboration  with  the  Na- 
tional Assembly^  Task  Force  has  also  been  invaluable  in  identifying  problems  and 
seeking  remedies  for  our  common  problems.  The  Assembly  has  been  a  true  leader 
in  identifying  screening  issues  and  methods. 

At  this  point,  we  would  like  to  make  some  specific  comments  on  the  proposed  leg- 
islation. Section  3  "Background  Checks,"  when  implemented,  will  for  all  practical 
purposes  establish  what  lawyers  call  a  "standard  of  care"  for  the  business  of  child 
care.  That  standard  will  apply  to  volunteer  organizations  as  well  as  for  profit.  The 
problem  is  that  the  legislation  will  make  FBI  checks  available,  but  it  will  not  pro- 
vide funding  for  the  organizations  to  pay  for  those  checks.  The  first  year  of  FBI 
services  for  CAP  was  free.  Then,  Congress  required  the  FBI  to  charge  users.  The 
$17.00  charge  per  record  was  ultimately  funded  from  Congress  because  of  CAPs 
other  federal  activities,  such  as  counter-narcotics  missions.  It  now  costs  $160,000 
per  year  and  that  only  covers  new  members.  Other  youth  organizations  or  child  care 
providers  will  have  to  pay  $23.00  per  record  according  to  current  fee  schedules. 

Some  experts  say  all  members  should  be  rescreened  every  five  years,  but  CAP  has 
yet  to  adopt  that  requirement.  Other  volunteer  organizations  may  well  be  unable 
to  pay  for  obtaining  these  records.  Yet,  if  they  do  not  avail  themselves  of  the  infor- 
mation and  a  convicted  sex  offender  molests  one  of  the  children,  it  will  simply  put 
them  out  of  business.  In  a  phrase,  the  legislation  is  establishing  a  standard  tnat 
organizations  cannot  afford  to  ignore  and  may  not  be  able  to  afford  financially. 

Also,  CAP  urges  that  the  records  on  offenders  be  expanded  to  include  arrests.  Our 
experience  with  FBI  records  has  been  that  some  sex  offenders  have  arrests  that 
have  no  disposition  simply  because  the  family  didn't  want  to  press  the  case.  If 
records  are  to  be  available,  make  it  complete  with  arrests.  Judgment  by  those  re- 
viewing them  will  be  the  key  to  using  them  correctly. 

We  also  urge  the  Committee  to  consider  including  a  provision  for  youth  organiza- 
tions to  freely  exchange  lists  of  adults  excluded  from  membership  because  of  sexual 
misconduct,  particularly  with  young  people.  Experts  will  tell  you  that  pedophiles 
will  go  from  one  youth  organization  to  another.  Legal  considerations  have  to  date 
made  this  impractical.  If  the  Scouts  have  identified  a  pedophile,  it  makes  no  sense 
not  to  have  a  free  exchange  of  this  information  to  keep  them  out  of  other 
organizations. 

The  insurance  consequences  of  this  legislation  and  of  the  whole  area  of  sex  of- 
fenses with  children  should  be  examined  very  closely  by  the  Committee.  The  cov- 
erage term  is  "SAME"  which  stands  for  Sex  and  Molestation  Exposure.  The  plain- 
tiffs' bar  has  used  the  legal  theories  of  "negligent  employment"  and  "negligent  reten- 
tion" to  make  large  claims  against  youth  organizations  which  have  experienced  a 
molestation  case  involving  a  volunteer  or  adult  employee  with  a  child  in  their  care. 
The  emotions  of  these  cases  have  resulted  in  multi-million  dollar  awards  for  chil- 
dren and  their  parents — not  against  the  molester,  but  rather  against  the  organiza- 
tion that  somehow  should  have  known  about  him  or  her.  Not  only  criminal  records 
are  used  to  prove  that  knowledge.  These  large  awards  have  convinced  many  large 
insurers  that  this  risk  should  be  excluded  from  General  Liability  coverage.  Cov- 
erage, if  it  exists  today,  rests  in  the  "specialty  market"  with  high  self  retentions, 
i.e.,  deductibles.  The  legislation  establishing  the  new  standard  of  care  and  the  insur- 
ance market's  withdrawal  of  coverage  may  drastically  affect  many  organizations' 
ability  to  continue  to  provide  child  care  at  all.  Without  insurance  coverage,  individ- 
ual volunteers  may  not  be  available.  It  is  clear  that  large  organizations  such  as  the 
Scouts,  Big  Brothers/Big  Sisters,  and  local  church  youth  groups  would  be  attempting 
to  serve. 

Civil  Air  Patrol  has  been  advised  that  it  will  lose  its  SAME  coverage  effective  in 
December  1993.  Unless  replaced  by  some  company,  we  will  again  face  the  issue  of 
continuing  the  cadet  program. 

Another  problem  with  screening  in  many  organizations  is  timing.  Civil  Air  Patrol 
deals  directly  with  the  FBI  and  it  customarily  takes  from  45  to  60  days  to  receive 
responses  to  our  fingerprint  requests.  While  this  works,  after  a  fashion,  for  Civil  Air 
Patrol,  it  would  not  be  practical  for  many  youth  organizations  using  volunteers  for 
short  periods,  such  as  Little  League  teams,  YMCAs,  and  youth  camping  groups. 

Again,  we  support  this  legislation  and  hope  these  comments  provide  some  useful 
suggestions  for  changes  as  it  makes  its  way  through  the  Congress. 

Thank  you  again  for  the  opportunity  to  provide  this  testimony. 

Mr.  Edwards.  Yes,  we  would  appreciate  hearing  from  Ms. 
Williams. 


70 

STATEMENT  OF  RENOVA  WILLIAMS,  DIRECTOR  OF 
PERSONNEL,  CIVtt,  AIR  PATROL,  MAXWELL  AIR  FORCE 
RASE,  MONTGOMERY,  AL 

Ms.  Williams.  Mr.  Chairman,  we  do  appreciate  the  opportunity 
to  be  here.  And  I  feel  a  particular  appreciation  for  what  you  are 
doing  in  that  when  we  started  wrestling  with  this  problem  of  crimi- 
nal records  screening  back  in  1986,  1987,  we  felt  lost.  We  were  al- 
most like  a  voice  in  the  wilderness. 

We  didn't  have  anywhere  to  go.  And  it  was  through  the  collabo- 
ration of  some  of  the  youth  organizations  that  we  found  that  they, 
too,  face  similar  problems.  Ana,  of  course,  we  made  what  I  consider 
some  very  difficult  decisions  as  an  organization. 

We  predicted,  and  rightly  so,  that — we  projected  membership 
losses,  significant  membership  loss  as  a  result  of  our  implementing 
the  criminal  records  check.  What  this  meant  to  our  organization, 
which  is  already  a  small  organization,  we  went  down  from  some 
73,000  members  to — we  stand  at  55,000  at  this  time.  We  never 
quite  recovered.  There  are  other  reasons.  We  experienced  some 
other  things  like  recessions  and  other  reasons  for  membership 
losses,  but  in  particular,  we  could  correlate  some  of  our  losses  of 
volunteers  with  the  implementation  of  this  check. 

Our  organization  said,  we  believe  that  we  have  to  make  a  tough 
decision,  Dut  we  need  to  save  our  cadet  program,  our  youth  pro- 
gram. With  that  in  mind,  that  decision  was  made.  We  have  paid 
for  that  decision  membershipwise,  if  you  would. 

Some  of  our  volunteers  are  good  people.  They  are  people  that 
wanted  to  help  the  children  and  they  wanted  to  volunteer  and, 
frankly,  at  the  time  they  were  offended  at  being  asked  to  submit 
to  this.  We  took  upon  ourselves  an  extensive  education  campaign 
to  explain  to  our  membership.  And  now  they  are  beginning  to  see 
the  things  that  we  were  talking  about  in  1988,  you  are  discussing 
here  today. 

It  took  us  a  number  of  years  and  a  number  of  very  difficult  deci- 
sions, especially  when  we  are  probably  faced  with  losing  insurance 
and  not  knowing  if  we  can  keep  our  cadet  program.  But  we  were 
able  to  do  that. 

We  tried  to  be  a  good  customer  to  the  FBI  because  we  recognized 
that  they  took  us  on  and  we  are  very  fortunate  to  have  access 
through  that,  not  just  because  of  our  youth-serving  role,  but  be- 
cause of  some  of  our  other  Federal  assistance  roles.  But  in  so  doing, 
it  takes  us  typically  45  to  60  days — and  we  are  a  paying  customer. 
Those  are  with  user  fees — to  have  a  turnaround.  We  have  been  to 
the  FBI  headquarters  and  we  have  seen  the  workload  and  their 
challenges  and  we  know  what  they  are  going  through.  We  try  to 
understand;  to  be  a  good  customer  to  them. 

But  at  the  same  time,  from  the  time  that  a  fingerprint  card  is 
processed  out  in  one  of  our  communities,  it  is  sent  to  our  national 
headquarters  for  review  to  make  sure  that  it  is  legible  and  we  can 
give  it  to  the  FBI  in  a  form  that  they  require,  and  we  take  it  from 
our  headquarters  in  Montgomery,  AL,  and  return  it  to  the  FBI;  it 
could  be  a  good  45  to  60  days. 

This  works  for  Civil  Air  Patrol  after  a  fashion  in  that  ours  is  a 
long-term  membership,  but  some  of  these  organizations  have  a 
short-term  membership  and  perhaps  it  would  not  work  for  them  at 


71 

all  because  by  the  time  that  is  received  or  returned  to  them,  their 
need  would  have  expired. 

These  are  some  of  the  things  that  I  would  like  to  leave  with  the 
committee.  We  appreciate  your  work  so  much  because  we  have 
been  doing  this  for  some  time  now.  We  need  to  let  you  know  that 
well-intended,  good  volunteers  simply  dropped  out  of  the  program. 
And  keep  in  mind  they  didn't  have  to  pay  the  user  fee.  That  was 
paid  for  them. 

So  if  you  could  imagine  the  Scouts  and  some  of  the  other  organi- 
zations if  they  had  to  pay  the  user  fee,  there  could  be  a  more  sig- 
nificant loss  of  membership.  We  appreciate  Congressman  Schroe- 
der's  efforts  in  this  area  and  all  of  the  committee's  pioneering  what 
we  consider  to  be  a  problem  for  a  long,  long  time. 

Mr.  Edwards.  We  thank  all  members  of  the  panel.  They  have 
provided  us  with  some  valuable  information  and  suggestions. 

Mrs.  Schroeder. 

Mrs.  Schroeder.  I  thank  you,  too.  Mr.  Swann,  you  are  abso- 
lutely right.  This  is  a  baby  and  we  need  to  see  how  it  grows. 

And  we  know  it  is  not  the  whole  solution  to  this  terrific  problem. 
But  your  discussion  about  the  insurance  risk,  I  think  is  a  very  seri- 
ous one.  We  would  certainly  hate  to  see  voluntary  agencies  shut 
down. 

Has  anybody  ever  communicated  with  insurers? 

Would  this  type  of  legislation  or  this  type  of  work  at  the  national 
level  be  any  way  that  they  could  start  reinsuring  people? 

I  mean  is  there  anything  that  we  could  do  to  lessen  the  risk  or 
the  exposure  they  are  feeling? 

Colonel  Handley.  Mrs.  Schroeder,  we  have  talked  to  a  number 
of  insurers.  We  are  in  a  position  of  offering  a  problem  without  a 
resolution.  But  the  general  liability  market  simply  didn't  know  how 
to  handle  this  risk. 

It  is  not  an  automobile  accident  with  so  many  statistics  to  it.  It 
is  too  emotional  and  the  jury  verdicts  range  in  the  multimillion-dol- 
lar area.  And  many  of  the  underwriters  simply  don't  know  how  to 
evaluate  the  risk.  The  general  liability  market  is  withdrawing. 

The  specialty  market  is  to  a  certain  extent  remaining.  But  if  a 
youth  organization  has  a  verdict,  you  can  almost  count  on  a  with- 
drawal from  the  market  from  your  coverage  the  following  year  un- 
less you  are  willing  to  accept  the  first  $10  million  of  coverage  in- 
side, which  we  are  not,  or  some  type  of  high  deductible. 

So  I  don't  know  the  answer.  But  it  is  definitely  with  the  bill  es- 
tablishing a  level  of  care  or  a  standard  of  care  where  youth  organi- 
zations had  better  check  the  records,  or  if  they  don't  and  an  indi- 
vidual has  an  offense  on  the  record,  why  the  punitive  damages  are 
almost  certain  to  follow  if  they  are  very  difficult  cases. 

Mr.  Swann.  If  I  may,  I  would  like  to  say  that  from  our  perspec- 
tive at  Big  Brothers  and  Big  Sisters  we  find  that  not  to  be  the  case. 
Our  insurance  carrier  reviewed  our  policies  and  standards  through- 
out the  country  and  is  satisfied  with  our  procedures.  And  we  have 
received  a  rebate  in  terms  of  the  cost  of  our  insurance. 

So  I  would  offer  that  while  the  insurance  companies  will  take  a 
very  hard  and  long  look  at  the  organization  and  the  liabilities,  cer- 
tainly, the  policy,  our  standards  and  practices  and  how  you  operate 


72 

and  proceed  from  a  grassroots  level  all  the  way  to  a  national  office 
has  a  great  deal  to  do  with  that. 

And  as  strong  a  measure  as  we  could  have  from  Congress  in 
terms  of  a  bill  to  protect  children,  it  is  only  going  to  be  as  strong 
as  the  reporting  mechanisms  that  we  have  at  our  individual  agen- 
cies. If  our  agencies  have  cases  of  child  abuse  or  neglect  within  our 
organization  and  do  not  report  it,  then  it  doesn't  matter  what  kind 
of  records  we  keep  or  what  system  or  how  much  money  we  have 
in  place  to  carry  out  this  goal.  If  we  don't  report  it,  then  no  one 
knows. 

In  our  organization,  the  average  age  of  our  volunteer  is  35  years 
old.  And  we  have  a  lot  of  people  in  the  service  who  are  involved. 
That  means  they  are  doing  a  lot  of  traveling,  whether  for  profes- 
sional reasons,  they  decide  to  move,  get  married,  change  their  life, 
they  cross  State  and  county  lines  and  they  move  on.  And  you  have 
to  have  a  system  of  reporting  that  allows  you  to  have  that. 

So  it  does  begin  with  that  local  agency  and  if  it  is  not  a  strong 
policy  at  the  local  executive  director,  those  volunteers  do  not  report 
any  incidents  to  the  State  social  services  or  to  legal  authority.  If 
it  gets  to  that  point  or  to  our  own  national  office,  then  it  is  a  failed 
program. 

So  we  believe  that  what  we  need  is  a  strong  program  that  the 
Government  supports  and  stands  behind.  And  we  need  to  ensure 
that  each  agency  is  doing  more  than  their  share  to  make  sure  that 
the  system  is  in  place. 

Mrs.  Schroeder.  You  are  absolutely  right. 

Mr.  Edwards.  Has  your  organization  been  sued? 

Mr.  Swann.  Our  organization  has  been  sued.  As  I  stated  before, 
one  of  every  six  volunteers  that  come  comes  through  our  door  be- 
comes a  Big  Brother  or  Big  Sister.  Some  have  settled  and  some 
have  gone  through  the  entire  process  in  the  court  and  we  have  lost 
some  of  those,  but  we  still  continue  to  get  volunteers  and  we  con- 
tinuing to  grow. 

Colonel  Handley.  If  I  may  respectfully  disagree  with  Mr.  Swann. 

I  think  if  the  committee  would  look  into  the  insurance  market  it- 
self independently,  just  ask  the  general  questions  of  the  market- 
place about  the  same  risk,  I  think  you  will  find  what  we  are  sug- 
gesting is  accurate;  that — I  mean,  CAP  is  considered  one  of  the 
Forefront  people  in  the  fingerprint  national  screening  program. 
Very  aggressive. 

And  we  simply  have  a  terrible  time  in  convincing  underwriters 
that  with  the  youth  program  we  have,  that  the  SAME  risk  should 
be  covered.  Many  of  the  carriers  will  give  you  a  $25,000  token  cov- 
erage just  so  there  is  no  discrimination  issue  involved  in  issuing 
policies,  but  that  is  nothing  in  the  way  of  coverage. 

And  then  there  is  the  other  thing.  Perhaps  a  certain  level  of  pre- 
mium you  might  be  able  to  insure  this  risk,  but  out  of  CAP'S  $1.4 
million  dues  revenue,  the  insurance  liability  program  takes  almost 
$800,000  of  our  revenue  as  it  is  and  part  of  it  is  for  our  aircraft 
fleet,  but  the  other  half  is  for  the  general  liability.  So  we  simply 
can't  afford  the  risk  any  worse  than  it  is. 

Mrs.  Schroeder.  That  is  very  interesting.  And  the  Boy  Scouts 
don't  have  this  problem  and  don't  think  that  the  fingerprinting  is 


73 

necessary?  I  mean,  how  have  you  been  able  to  screen  and  avoid 
this  problem? 

Mr.  Potts.  The  Boy  Scouts  has  always  encouraged  organizations, 
like  churches,  to  choose  members  in  their  community,  members  in 
their  congregation,  members  who  they  know.  Most  of  these  mem- 
bers, and  by  far  the  majority  of  these  members,  have  kids  that  are 
in  the  program.  They  are  mothers  and  fathers  who  are  going 
through  the  program  with  their  youngsters. 

We  nave  an  application  form  that  asks  for  references.  We  have 
an  application  form  that  requests  to  know  where  you  have  lived 
over  a  certain  period  of  time  and  who  you  have  worked  for.  But  we 
do  not,  under  most  circumstances,  require  that  individual  to  get  a 
fingerprint  check. 

In  fact,  in  most  States,  you  can't  just  walk  down  to  our  station 
and  get  one  of  those.  So  we  use — we  know  the  leaders  that  we  are 
selecting.  They  come  out  of  the  community  they  are  serving  in. 
They  fill  out  extensive  background  applications,  and  are  chosen  in 
that  matter. 

With  regards  to  insurance,  we  think  the  insurance  market  is 
very  spotty.  There  are  companies  which  are  pulling  out. 

I  am  not  an  expert  and  up  on  the  minute  on  knowing  what  com- 
panies are  writing  and  what  companies  are  not  writing  and  I  can't 
give  you  very  much  information  on  that;  I  am  sorry. 

Mrs.  Schroeder.  Do  you  have  a  profile  of  what  you  think  is  a 
trustworthy  volunteer  that  has  worked  for  you  and  has  not  caused 
any  problems?  I  mean,  you  can  figure  this  out  without  any  help? 

Mr.  Potts.  Unfortunately,  experts  have  told  us  that  there  is  no 
profile,  there  is  no  way  in  advance  that  you  can  be  assured. 

Mrs.  Schroeder.  That  is  what  they  have  told  us,  too.  I  thought 
maybe  you  have  found  the  key  to  unlocking  all  of  this. 

Mr.  Potts.  We  also  rely  on  our  training  program  as  I  talked  to 
you  about.  There  are  going  to  be  some  people — pedophiles  may 
nave  children,  may  be  married.  People  who  we  would  like  to  get 
into  our  leaders  would  come  out  of  the  community  and  would  be 
known  in  the  community,  would  have  roots  in  the  community, 
would  be  married  and  would  be  fathers  of  kids  in  the  program. 
Those  are  the  people  who  primarily  that  we  have. 

But  there  are  going  to  be  some  who  do  get  into  the  program.  And 
the  education  program  that  we  have  really  cooperated  on,  I  mean 
have  really  pushed  in  the  last  several  years,  goes  directly  to  kids. 

We  try  to  seek  empowerment  to  children  so  the  children  know 
what's  happening  to  them,  so  that  the  children  can  spot  the 
allurers.  We  try  to  teach  parents  how  to  protect  their  kids  from 
child  abuse  and  we  talk  to  volunteers;  we  have  programs  for 
volunteers. 

So,  we  try  and  protect,  as  I  am  sure  all  of  these  organizations 
do,  we  try  and  protect  the  people  who  are  in  the  program  by 
empowerment  should  a  pedophile  get  into  the  program. 

Mrs.  Schroeder.  Very  interesting.  Again,  I  thank  the  panel,  and 
consider  the  window  open.  Any  ideas  that  you  have  for  what  we 
can  do  to  make  this  more  usable  or  better  or  more  accessible?  And 
I  think  your  point  about  the  local  agency  doesn't  follow  through,  it 
never  works.  So  we  have  to  find  a  way  that  we  are  working  from 
the  top-down  and  the  bottom-up  and  everywhere  in  between. 


74 

Thank  you  very,  very  much. 

Mr.  Edwards.  I  thank  you  all  very  much,  also. 

You  have  not  only  been  splendid  witnesses,  but  you  have  given 
us  some  valuable  suggestions.  We  are  going  to  go  over  these  sug- 
gestions, I  will  with  Mr.  Hyde  and  counsel  and  the  other  members 
of  the  subcommittee,  and  we  will  not  necessarily  accept  all  of  them. 
Some  of  them  will  be  a  matter  of  committee  decision. 

But  the  bill  will  be  marked  up  and  approved  in  the  next  few 
weeks.  We  hope,  as  I  said  in  my  opening  remarks,  that  it  will  be 
a  part  of  the  crime  bill  that  is  being  presently  written.  If  it  is  not, 
or  if  something  happens  to  the  crime  bill  and  it  doesn't  make  it, 
we  intend  to  take  it  to  the  House  of  Representatives  as  a  freestand- 
ing bill  all  by  itself  and  encourage  our  colleagues  in  the  Senate  to 
do  the  same. 

And  I  know  that  the  President  of  United  States  endorses  the  bill. 
So  we  expect  to  move  it  along  and  have  it  in  the  Rose  Garden  cere- 
mony. I  hope  that  all  of  you  come  when  the  bill  is  signed  in  just 
a  very  few  months. 

Thank  you. 

Mrs.  Schroeder.  Thank  you,  Mr.  Chairman. 

Mr.  Edwards.  The  subcommittee  is  adjourned. 

[Whereupon,  at  11:35  a.m.,  the  subcommittee  adjourned,  to  re- 
convene subject  to  the  call  of  the  Chair.] 


75 

APPENDIX 


HARPO.  INC. 


Material  Submitted  for  the  Hearing 

HARPO 


1 10  North  Carpenter  Street 
Chicueo.  Illinois  60607 
312.633.1000     Fax  312.633.1111 

Oprah  Winfrey  August  2,  1993 

Chairman  ol  the  Board 


The  Honorable  Don  Edwards 

Chairman 

Subcommittee  on  Civil  and  Constitutional  Rights 

Committee  on  the  Judiciary 

U.S.  House  of  Representatives 

Washington,  D.C.   20515 

Re:      Hearing  on  the  National  Child  Protection  Act  of 
1993 
Dear  Mr.  Chairman: 

I  write  to  express  my  continued  strong  support  for  H.R. 
1237,  the  National  Child  Protection  Act  of  1993.  I  am  extremely  pleased 
that  the  Subcommittee  on  Civil  and  Constitutional  Rights  held  a  hearing 
on  July  16  to  consider  the  legislation,  and  I  am  hopeful  that  this  hearing 
will  lead  to  the  quick  enactment  of  the  Act. 

I  understand  that,  although  all  of  the  witnesses  expressed 
support  for  H.R.  1237,  some  technical  concerns  were  raised  at  the  hearing. 
To  assist  the  Subcommittee  in  addressing  these  concerns,  I  have  asked  my 
legislative  counsel  in  this  matter,  Governor  Jim  Thompson,  to  prepare  the 
attached  comments  on  my  behalf.  Please  call  upon  Governor  Thompson 
or  his  staff  if  they  can  be  of  further  assistance.  I  ask  that  this  letter  and 
the  attached  comments  be  included  in  the  record  of  the  hearing. 

As  you  may  recall,  you  and  I  met  to  discuss  a  draft  of  this 
legislation  in  November,  1991.    I  am  sure  you  share  my  frustration  that 
other  issues  have  prevented  Congress  from  enacting  this  necessary 
measure.  Although  much  more  needs  to  be  done  on  the  whole  range  of 


76 


child  abuse  issues  and  programs,  H.R.  1237  would  greatly  help  prevent 
one  of  the  most  preventable  forms  of  child  abuse  ~  abuse  outside  the 
home  by  those  already  convicted  of  child  abuse  or  other  serious  crimes. 
I  urge  the  Congress  to  act  as  quickly  as  possible  to  put  this  important 
protection  in  place. 

Again,  thank  you  for  your  unceasing  efforts  to  protect  our 
nation's  children. 


Attachment 


77 


BEFORE  THE  SUBCOMMITTEE  ON  CIVIL 

AND  CONSTITUTIONAL  RIGHTS 

OF  THE  COMMITTEE  ON  THE  JUDICIARY 

U.S.  HOUSE  OF  REPRESENTATIVES 


COMMENTS  ON  BEHALF  OF  OPRAH  WINFREY 

ON  H.R.  1237, 

THE  NATIONAL  CHILD  PROTECTION  ACT  OF  1993 


*    •   *   * 


Washington,  D.C.  Counsel  to  Ms.  Winfrey: 

August  2,  1993 

Governor  James  R.  Thompson 
Edward  F.  Gerwin,  Jr. 

Winston  &  Strawn 
1400  L  Street,  N.W. 
Washington,  D.C.  20005 
(202)  371-5700 


78 


COMMENTS  ON  BEHALF  OF  OPRAH  WINFREY 

ON  H.R.  1237, 

THE  NATIONAL  CHILD  PROTECTION  ACT  OF  1993 

On  behalf  of  Ms.  Oprah  Winfrey,  we  appreciate  the  opportunity  to  provide  the 
Subcommittee  on  Civil  and  Constitutional  Rights  with  the  following  comments  on  H.R.  1237,  the 
National  Child  Protection  Act  of  1993  (the  "Act").  These  comments  address  specific  concerns 
voiced  at  the  July  16,  1993,  hearing  on  the  Act. 

As  a  general  matter,  we  note  that  many  of  the  specific  concerns  raised  at  the  recent 
hearing  --  such  as  the  overall  accuracy  of  criminal  records  and  the  availability  of  insurance  -- 
involve  matters  beyond  the  scope  of  the  proposed  legislation.  Although  H.R.  1237  will  provide 
incremental  help  in  addressing  these  difficult  problems,  Congress  must  also  undertake  broader 
efforts  to  address  these  important  and  longstanding  issues.  In  the  meantime,  Congress  and  the 
Administration  must  work  to  implement  the  Act  in  the  current  environment.  Our  nation's  children 
should  not  be  subjected  to  preventable  instances  of  child  abuse. 

l.         The  Accuracy  of  Criminal  History  Records 

At  the  hearing,  the  Federal  Bureau  of  Investigation  and  others  expressed  concern 
over  the  accuracy  and  currency  of  criminal  history  records.  In  particular,  it  was  noted  that  a 
substantial  percentage  of  criminal  records  lack  up-to-date  disposition  information. 

The  concern  with  the  accuracy  of  background  check  records  is  certainly  appropriate. 
In  view  of  the  importance  of  accurate  criminal  history  records  for  background  checks  under  H.R. 
1237  and  current  statutory  schemes,  as  well  as  for  law  enforcement  in  general,  the  Federal 
Government  and  the  states  should  devote  the  resources  required  to  update  and  improve  these 
important  records. 

Inaccurate  or  incomplete  criminal  history  records  could  have  serious  consequences 
for  those  individuals  whose  backgrounds  are  searched.  H.R.  1237,  as  currently  drafted,  addresses 
this  concern  by  establishing  strong  protections  for  the  individual.  The  Act  includes  detailed  privacy 
provisions  and  an  expeditious  procedure  to  permit  individuals  to  challenge  and  refute  inaccurate  or 
outdated  information  in  a  background  check. 

The  lack  of  current  disposition  information  on  many  criminal  history  records  may 
unduly  narrow  the  information  available  for  background  checks  if  such  checks  are  limited  solely 
to  convictions.  Consequently,  the  Subcommittee  should  consider  amending  section  3(a)  of  the 
current  bill  to  permit  background  checks  to  include  arrest  information.1' 

The  well-being  of  our  nation's  children  requires  the  prompt  implementation  of  a 
nationwide  criminal  history  background  system  and  concurrent  efforts  to  improve  the  accuracy  of 
criminal  records.  As  current  state  experience  has  shown,  improvements  in  background  check 
systems  -  even  with  the  current  systems  of  records  -  will  reduce  the  number  of  children  wounded 
and  threatened  by  child  abuse. 

n.        Burdens  on  the  States  and  Voluntary  Organizations 

Witnesses  at  the  hearing  noted  that  the  Act  will  place  financial  burdens  on  the  states 
and  voluntary  organizations.     The  National  Conference  of  State  Legislatures  noted  that  the 


At  the  hearing,  the  Civil  Air  Patrol  (the  "CAP")  supported  the  inclusion  of  both 
convictions  and  arrests  in  background  checks  covered  by  H.R.  1237.  The  CAP,  which 
has  had  substantial  experience  with  a  background  check  program,  noted  that  a  pattern  of 
arrests  is  often  a  good  indication  of  a  potential  to  abuse  children.  We  support  the 
inclusion  of  both  arrests  and  convictions  as  the  best  means  to  assure  the  protection  of 
children. 


79 


$20,000,000  which  would  be  authorized  to  implement  the  bill  would  not  be  sufficient  to  update  the 
records  of  the  various  states.  Witnesses  from  voluntary  organizations  stated  that  the  Act  would 
burden  their  organizations  if  a  fee  is  assessed  for  each  check. 

As  noted  above,  accurate  criminal  records  and  efficient  records  systems  are  required 
for  a  whole  range  of  law  enforcement  reasons.  H.R.  1237  provides  incremental  financial  help  to 
improve  such  records  and  systems.  Other  funding  must,  however,  come  from  other  sources  For 
example,  if  a  firearms  background  check  system  is  implemented.  Congress  must  authorize  and 
appropriate  substantial,  additional  funding  to  improve  records  and  systems.  We  encourage  the 
federal  government  to  work  with  the  states  to  find  the  resources  to  make  this  program  work. 

To  reduce  the  financial  burdens  on  voluntary  organizations,  the  Federal  and  state 
governments  should  consider  flexible  payment  requirements  for  background  checks.  Those 
organizations  and  individuals  that  are  able  to  pay  for  background  checks  should  be  required  to  do 
so.  Other  organizations,  particularly  volunteer  groups,  may  find  the  costs  of  background  checks 
to  be  prohibitive.  Sliding  scales  could  be  implemented  to  allow  certain  organizations  to  pay  a 
reduced  rate  for  a  background  check.  In  addition,  banks  and  other  for-profit  organizations  and 
individuals  subject  to  firearms  background  checks  might  be  assessed  a  small  fee  for  each 
background  check.  This  fee  could  fund  child  care  background  checks  for  deserving 
organizations.27 

m.      Access  to  Background  Check  Information 

Concern  was  expressed  at  the  hearing  about  the  privacy  implications  of  providing 
background  check  information  directly  to  qualified  entities  under  the  Act.  As  Chairman  Edwards 
noted,  however,  such  information  is  already  provided  to  banks  and  similar  organizations  under 
current  law.    Moreover,  as  noted  above,  H.R.  1237  contains  strong  privacy  protections. 

If,  despite  these  considerations,  the  Subcommittee  believes  that  background  check 
information  should  not  be  shared  with  qualified  entities,  an  alternative  exists.  As  set  forth  in  the 
original  draft  legislation  presented  by  Ms.  Winfrey  in  1991 ,  qualified  entities  could  require  potential 
volunteers  and  employees  to  provide  a  written  summary  of  any  past  crimes.  This  information  could 
then  be  supplied  to  the  state  agency,  which  would  check  it  against  criminal  records  and  either 
confirm  the  accuracy  of  the  information  supplied  or  report  that  a  discrepancy  existed.  The 
responsibility  would  then  rest  with  the  qualified  entity  to  clarify  any  discrepancies  with  the  applicant 
and  to  resubmit  corrections  to  the  state  agency.  Although  this  alternative  may  involve  more  steps, 
it  ensures  the  same  result  -  child  protection. 

IV.       Evaluation  of  Background  Check  Information 

Some  of  the  remarks  made  at  the  hearing  suggested  that  the  Act  required  the  state 
agencies  conducting  background  checks  to  determine  whether  an  individual  should  be  offered  a 
child  care  position  within  an  organization.   This  is  incorrect. 

As  currently  drafted,  H.R.  1237  leaves  to  the  organization  requesting  the  search  the 
decision  whether  to  offer  an  individual  a  position  (paid  or  volunteer).  Although  many  states  have 
specific  fitness  criteria  for  narrowly-defined  classes  of  child  care  workers,  the  states  are  not 
equipped  to  conduct  screening  for  other  purposes,  particularly  for  voluntary  organizations.  Each 
such  organization  must  be  free  to  determine,  on  the  basis  of  many  relevant  factors,  whether  an 
individual  would  make  an  appropriate  volunteer  or  employee.  In  some  situations,  for  example,  the 
entity  may  determine  that  a  person  who  has  committed  a  background  check  crime  can,  nonetheless, 
make  a  valuable  contribution  to  the  organization,  possibly  in  a  position  which  allows  only 
supervised  time  with  children. 


v  A  number  of  voluntary  organizations  noted  that  requiring  background  checks  would 

discourage  volunteers  from  participating  in  their  organizations.  We  would  hope  that,  by  making 
background  checks  more  routine  and  by  emphasizing  the  importance  of  such  checks,  H.R.  1237 
would  help  prevent  the  loss  of  volunteers. 


80 


V.  Broad  Coverage  of  the  Act 

At  the  hearing,  Congressman  Canady  questioned  whether  the  Act  was  intended  to 
include  ajl  child  care  providers  and  reach  so  broadly  that  it  included  "sunday  school  teachers. "  In 
addition,  representatives  of  the  Boy  Scouts  suggested  that  the  Act  should  not  cover  voluntary 
organizations. 

It  is  essential  that  the  Act  have  broad  application.  The  problem  of  child  abuse  is  not 
confined  to  day-care  centers.  It  has  crept  into  every  type  of  child  care  situation  -  public  and 
private  schools,  summer  camps,  volunteer  organizations  ~  even  church  youth  programs  are  not 
immune  from  the  risk  of  child  abuse.  According  to  Andrew  H.  Vachss,  a  nationally-recognized 
expert  on  child  abuse,  predatory  child  abusers  often  seek  access  to  children  in  voluntary 
organizations.  This  frightening  fact  was  reiterated  at  the  hearing  by  the  Civil  Air  Patrol.  Child 
abusers  have  formed  deviant  societies  whose  sole  purpose  is  to  locate  and  infiltrate  voluntary  and 
other  organizations  which  allow  them  unsupervised  contact  with  children. 

In  considering  the  broad  coverage  of  the  Act,  it  is  important  to  bear  in  mind  that 
participation  in  the  Act's  background  check  system  is  purely  voluntary;  the  Act  does  not  require 
organizations  to  conduct  background  checks.  The  Act  merely  makes  background  checks  available 
to  qualified  organizations.  Sunday  schools  and  Boy  Scout  troops  that  believe  that  they  can  protect 
against  child  abuse  without  resorting  to  background  checks  would  remain  free  to  do  so.  The 
Subcommittee  must  assure,  however,  that  the  widest  possible  variety  of  organizations  have  the 
option  to  seek  nationwide  background  checks.-' 

VI.  Insurance  and  Liability 

A  final  concern  raised  at  the  hearing  involved  the  difficulty  some  volunteer 
organizations  are  experiencing  in  their  efforts  to  obtain  Sexual  and  Molestation  Exposure  coverage 
("SAME").  According  to  these  organizations,  the  insurance  industry  is  currently  unable  to  assess 
the  risks  of  sexual  molestation  within  child  care  organizations. 

Although  this  important  problem  goes  beyond  the  scope  of  the  Act,  the  Act  should 
provide  some  help  in  addressing  the  insurance  issue.  The  Act  will  ensure  more  accurate  and 
consistent  reporting  of  sexual  abuse  incidence,  thereby  providing  insurance  companies  with  a  better 
means  to  evaluate  the  risk.  In  addition,  organizations  that  take  advantage  of  the  Act's  procedures 
will  reduce  their  potential  exposure  for  incidents  of  child  abuse. 

VII.  Conclusion 

As  Congresswoman  Schroeder  noted  at  the  hearing,  it  is  currently  easier  to  track 
stolen  cars  than  to  screen  for  potential  child  abusers.  The  National  Child  Protection  Act  of  1993 
seeks  to  correct  this  unfortunate  imbalance.  On  behalf  of  Oprah  Winfrey,  we  look  forward  to 
working  with  the  Subcommittee  to  resolve  any  technical  concerns  and  to  assure  the  prompt  passage 
of  the  Act. 

Washington,  D.C.  Counsel  for  Oprah  Winfrey: 

August  2,  1993 

Governor  James  R.  Thompson 
Edward  F.  Gerwin,  Jr. 

Winston  &  Strawn 
1400  L  Street,  N.W. 
Washington,  D.C.  20005 
(202)  371-5700 


Many  volunteer  organizations,  such  as  the  Civil  Air  Patrol  and  Big  Brothers/Big  Sisters, 
have  already  designed  and  implemented  child  protection  programs  which  incorporate 
currently  available  background  check  systems.  Other  organizations  should  have  this 
option. 


81 


Vigilant  in  the  Protection  of  Our 
Children  or  Vigilantes? 

Legal  Considerations  in  Drafting  Screening  Laws 

and 
Recommendations  for  Safeguarding  Children 
In  Child  Care  Settings 


Prepared  by: 
Abby  J.  Cohen 
Managing  Attorney 
Child  Care  Law  Center 
625  Market  Street,  #815 
San  Francisco,  CA  941C5 
(415)  495-5498 


©  1985  Child  Care  Law  Center, 
a  special  project  of  the 
San  Francisco  Lawyers'  Committee  for  Urban  Affairs 


82 


I.    Introduction 

During  the  past  year,  allegations  of  child  abuse,  particularly 
child  sexual  abuse,  have  garnered  widespread  media  attention. 
While  statistics  gathered  nationwide  indicate  that  an  overwhelming 
82%  of  child  abuse  is  committed  by  family  members  and  experts 
acknowledge  the  importance  of  child  care  in  the  prevention, 
detection  and  treatment  of  child  abuse, *  most  of  the  publicity 
has  focused  on  allegations  of  abuse  occurring  in  child  care 
settings.   These  allegations  have  prompted  legislators,  parents, 
child  care  givers  and  licensing  officials  to  seek  more  effective 
strategies  to  protect  children  in  child  care.   While  few  would  wish 
to  detract  from  attention  which  raises  the  public  consciousness 
about  the  seriousness  and  prevalence  of  child  abuse,  nor  criticize 
good  faith  legislative  efforts  to  protect  children,  thus  far  the 
consequences  of  media  and  legislative  attention  are  not  all 
salutary. 

Too  frequently,  the  media  maligns  child  care  generally,  never 
emphasizing  its  positive  aspects.  Such  coverage  usually  discounts 
or  ignores  the  dedication  of  thousands  of  child  caregivers  who 
provide  an  essential  service  to  children  and  their  parents  in  the 
face  of  low  wages,  long  hours  and  little  recognition  for  the 
importance  and  difficulty  of  their  work.   Additionally,  such 
coverage  also  tends  to  shower  guilt  on  parents  who  already  face 
conflicts  because  of  the  lack  of  accomodation  our  society  has  made 
for  working  parents. 


83 


Similarly,  many  legislative  responses  focus  only  on  screening 
out  criminals  or  stiffening  criminal  penalties  for  offenders.   In 
many  states,  criminal  record  history  screening  has  been  put  into 
place  without  the  thorough  consideration  such  measures  require. 
Additionally,  little  attention  is  given  to  a  cost/benefit  analysis 
of  screening.   Recent  statistics  from  New  York  City,  similar  in 
result  to  California  statistics,  reveal  that  less  than  1%  of  those 
screened  had  prior  felony  convictions.2   Most  importantly, 
attention  is  diverted  from  measures  which  are  already  proven  or 
have  the  potential  to  expand  and  improve  child  care  programs, 
thereby  reducing  the  risks  of  improper  or  inadequate  care. 

One  of  the  responses  to  allegations  of  child  abuse  in  child 
care  settings  was  the  passage  of  P.L.  98-473.  The  paper  which 
follows:  1)  describes  P.L.  98-473,  2)  sets  out  the  legal  and 
non-legal  aspects  which  ought  to  be  considered  in  drafting  a 
national  criminal  record  screening  law  which  complies  (and/or  goes 
beyond)  the  requirements  of  P.L.  98-473,  3)  sets  out  considerations 
in  developing  laws  or  regulations  dealing  with  employment  history 
and  background  checks  and  4)  concludes  with  a  list  of 
recommendations  for  avenues  other  than  screening  to  prevent  child 
abuse  in  child  care  settings  and  to  provide  better  regulatory 
enforcement  once  child  abuse  is  suspected. 

II.   P.L.  98-473 

As  currently  written,  P.L.  98-473  requires  states,  in  order  to 

obtain  their  full  Title  XX  appropriation,  in  FY  1986  or  1987,  to 

have  in  place  by  September  30,  1985,  procedures,  (through  law  or 

regulation)  to  provide  for  employment  history  and  background  checks 


84 


and  a  statute  which  provides  for  nationwide  criminal  record 
checks.   These  checks  are  to  be  done  on  current  and  prospective 
operators,  staff  and  employees  of  "child  care  facilities  (including 
any  facility  or  program  having  primary  custody  of  children  for  20 
hours  or  more  per  week)  and  juvenile  detention,  correction  or 
treatment  facilities."  No  further  guidance  is  given. 
III.  DEVELOPING  A  CRIMINAL  RECORD  SCREENING  LAW 
A .   Why  a  model  statute  and  regulations  are  not  provided  here  * 
After  attempting  to  construct  a  model  state  statute  for  the 
national  criminal  record  screening  of  child  caregivers  which 
would  be  in  compliance  with  P.L.  98-473,  it  became  apparent 
that  this  would  not  be  possible  for  three  reasons.   The 
reasons  are: 

1.  DHHS  has  chosen  not  to  clarify  programs  and  activities  to 
be  regulated  within  the  meaning  of  P.L.  98-473,  but  has 
left  this  to  the  discretion  of  the  states;  (see  Federal 
Register,  January  15,  1985  p.  2090). 

2.  the  wide  variation  among  states  regarding  which  child 
care  and  juvenile  programs  are  regulated,  to  what  degree 
and  by  whom; 

3.  a  desire  to  distinguish  what  is  required  by  the  law,  what 
is  optional  but  desireable,  and  what  is  undesireable . 

1 .    Amending  existing  legislation 

P.L.  98-473  requires  screening  of  a  variety  child  caring 
institutions  all  of  which  may  not  be  regulated 


*  The  Child  Care  Law  is  available,  for  a  fee,  to  provide  technical 
assistance  in  the  drafting  of  screening  statutes  tailored  to  th- 
needs  of  individual  states  and  in  compliance  with  P.L.  98-473. 
Contact  Abby  Cohen,  Managing  Attorney,  Child  Care  Law  Center,  625 
Market  Street,  Suite  815,  San  Francisco,  CA  94105.  (415)  495-5498. 


85 


under  the  same  state  law.  Consequently,  states  will 
either  have  to  pass  a  law  amending  all  of  these 
regulatory  schemes,  amend  each  law  individually,  or  if 
they  are  fortunate  and  all  forms  of  employment  covered  by 
P.L.  98-473  appear  in  one  law,  amend  only  that. 
Additionally,  they  may  have  to  amend  the  laws  in  their 
states  governing  the  state  agency  which  does  criminal 
history  checks  to  authorize  that  agency  to  send 
fingerprints  to  the  F.B.I,  and  to  share  information  it 
has,  and  information  it  receives  from  the  F.B.I,  with  the 
pertinent  regulatory  agency  which  will  make  the 
employment  decisions.  * 

2.    Definition  of  those  programs  and  providers  of  care 
covered 

In  order  to  comply  with  P.L.  98-473,  and  P.L.  92-544,  all 
staff,  operators  and  employees  of  defined  programs  need 
to  be  explicitly  identified  in  the  statute.   Each  state 
must  determine  what  types  of  child  care  facilities  exist 
in  its  state  which  have  primary  custody  of  children  for 
20  or  more  hours  per  week  and  which  programs  operate 
which  can  be  considered  juvenile  detention,  treatment  and 
correction  centers.   While  monies  under  P.L.  98-473  are 
limited  to  the  training  of  licensed  or  registered 
providers  of  child  care,  operators  and  staff  of  licensed 
or  registered  child  care,  licensing  and  enforcement 
officials  and  parents,  the  definition  given  for  those 
programs  and  providers  covered  in  the  screening  mandate 
is  not  similarly  limited.   At  the  very  least,  in  the  area 
of  child  care,  a  law  should  cover  anv  regulated  (whether 
licensed,  certified,  registered  or  approved)  child  care 
program  which  operates  for  20  hours  or  more  per  week. 
Each  state  also  should  address  the  following  concerns: 

a.  whether  the  statute  also  should  include:  public/private 
schools,  foster  care  and  forms  of  regulated  child  care 
which  operate  for  less  than  twenty  hours  per  week.   In 
addition,  when  care  takes  place  in  a  home,  consider 
whether  adults  (other  than  the  provider)  residing  in  the 
home  should  also  be  screened.  This  is  not  required  under 
P.L.  98-473. 

b.  how  it  plans  to  deal  with  substitutes  and 
volunteers.  Depending  upon  how  one  defines  "employees" 
under  the  statute,  substitutes  and  volunteers  may  be 
employees  or  they  may  not  be.  Even  if  they  are  not 
considered  employees,  a  state  may  still  choose  to  screen 


*  It  is  the  author's  contention  that  the  regulatory  agency,  not  an 
operator  should  be  receiving  this  information  and  making  employment 
decisions.  For  reasons  why,  see  section  4d  below. 


86 


volunteers.  California  takes  a  middle  ground.  Its  law 
provides:  "...In  determining  who  has  frequent  contact, 
any  volunteer  who  is  in  the  facility  shall  be  exempt 
unless  the  volunteer  is  used  to  place  [sic,  replace]  or 
supplement  staff  in  providing  direct  care  and  supervision 
of  children  in  care.   ...This  section  does  not  apply  to 
adult  volunteers  or  adult  staff  employed  by  the  applicant 
on  an  intermittent  basis  for  less  than  10  days  per  month, 
provided  that  these  adults  are  under  constant  supervision 
by  adults  who  meet  the  requirements  of  this  section." 

Substitutes  may  need  special  provisions  so  they  do  not 
have  to  be  cleared  over  and  over  again  at  different 
programs.   On  this  point  California  law  provides: 

"....  For  the  purposes  of  compliance  with  this  section, 
the  department  may  designate  a  child  care  resource   and 
referral  agency  or  other  agency  in  each  county  to 
maintain  a  file  of  criminal  record  clearances  [as 
previously  defined] ,  for  individuals  employees  on  a 
temporary  basis  by  applicants  in  that  county." 

c.    Unnecessary  Duplication:  Possible  special  provisions  so 

that  persons  like  public  school  personnel  who  may  already 
have  been  screened  recently  (it  may  be  desireable  to 
place  a  time  limit  on  how  long  ago  clearance  occurred)  do 
not  need  to  undergo  screening  again  if  they  now  seek 
employment  as  child  care  providers. 

3.  Need  to  cover  current  and  prospective  operators,  staff. 

To  avoid  an  enormous  deluge  of  checks  to  be  done  when  the 
law  becomes  effective  it  is  desireable  to  phase  the 
program  in.  A  recent  bill  proposed  in  Arizona  does 
this. 3  when  the  law  becomes  effective,  hiring  of  all 
prospective  operators,  staff  and  employees  will  be 
conditional  on  clearance  but  current  operators,  staff  and 
employees  will  be  checked  when  their  own  license  or  their 
employer's  license  is  up  for  renewal. 

4 .  Adopting  a  clearance  procedure 

Beyond  defining  who  is  to  be  checked,  the  statute  should: 

a.    specify  when  checking  will  be  done.   When  a  prospective 
operator  is  to  be  checked,  fingerprints  should  be 
submitted  at  the  time  of  application  for  licensure. 
Depending  on  the  length  of  time  required  for  processing, 
states  may  either  issue  a  license  upon  clearance,  or 
grant  a  provisional  license  which  becomes  a  regular 
license  when  clearance  occurs.  The  statue  should  also 
specify  if  another  check  is  requires  when  a  license  is  to 
be  renewed.  (California's  check  is  once  only).  When 
persons  being  checked  are  prospective  staff  or  employees, 
the  statute  should  require  that  these  persons  submit 
fingerprints  to  the  regulatory  agency  within  a  certain 
number  of  days  after  they  begin  work  (i.e.  20  days)  and 


87 


state  explicitly  that  permanent  employment  will  be 
contingent  upon  obtaining  clearance.   [In  the  case  of 
state  and  employees,  clearance  can  either  be  required  at 
the  time  of  new  employment  or  a  clearance  could  be  issued 
and  kept  on  file  at  the  time  of  the  first  job  and  could 
last  for  a  specified  period] . 

b .    Authority  to  conduct  the  criminal  records  check 

The  statute  should  require  notification  to  the  applicant 
that  a  criminal  record  check  will  occur,  explicitly 
authorize  the  regulatory  agency  to  submit  the 
fingerprints  to  the  state  justice  agency,  and  further 
empower  that  agency  to  submit  prints  to  the  F.B.I. 

c    What  will  be  considered  necessary  to  obtain  clearance 

Each  statute  should  clearly  set  forth  the  grounds  upon 
which  employment  can  be  denied.  It  is  unwise  to  leave 
this  to  guesswork  or  "guidelines". 

(1)   Convictions,  not  arrests  for  specified  crimes  should 
be  used.   Use  of  arrest  data  is  not  advised,   for  a 
number  of  reasons.   First,  because  minorities  are 
arrested  at  a  disproportionately  higher  rate  than 
whites,  automatic  disqualification  for  employment 
based  on  arrests  without  convictions  is  violative  of 
Title  VII.  (See  George  v.  Litton  Systems.  Inc.  472 
F.  2d  631  (1972)).  Secondly,  arrest  data  is 
notoriously  inaccurate.   Misinformation  may  be 
compounded,  never  leading  to  a  conviction,  but 
resulting  in  a  criminal  history  record  a  mile  long. 
Just  recently,  a  "Michigan  man  filed  suit  charging 
that  he  was  wrongfully  arrested  five  times  in  less 
than  14  months  after  an  arrest  warrant  for  a  man 
using  his  name  was  placed  in  the  national  computer 
system  of  the  Federal  Bureau  of  Investigation."4 
Conviction"  should  include  a  finding,  verdict  or 
plea  of  guilty  or  a  conviction  following  a  plea  of 
nolo  contendere.   The  names  of  crimes  will  vary, 
state  to  state,  but  should  include: 

(a)  sexual  abuse,  assault,  exploitation,  (both 
against  a  minor  and  adult) 

(b)  incest 

(c)  rape 

(d)  murder 

(e)  kidnapping 


88 


(f)  contributing  to  the  delinquency  of  a  minor 

(g)  felony  offenses  involving  narcotics 
(h)   violent  felonies  (armed  robbery) 

(2)  The  statute  should  also  state  that  conviction  of 
crimes  of  the  same  nature  in  other  states  and 
jurisdictions  are  also  grounds  for  denial  of 
employment. 

(3)  States  should  provide  a  mechanism  for  discretionary 
review  if  they  consider  every  kind  of  criminal 
conviction.   A  good  example  of  this  type  of  system 
is  California.  Because  California  looks  at  all 
convictions  other  than  minor  traffic  violations,  it 
provides  that  an  exemption  from  disqualification  may 
be  granted  to  one  convicted  of  crimes  other  than 
child  abuse  if  the  director  [of  the  state  licensing 
department]  has  substantial  and  convincing  evidence 
to  support  a  reasonable  belief  that  the  applicant 
[and  the  person  convicted  of  the  crime,  if  other 
than  the  applicant,]  are  of  such  good  character  as 
to  justify  exemption.   To  make  this  determination 
the  regulations  consider: 

1.  The  nature  of  the  offense  committed. 

2.  Time  elapsed  since  the  offense  was  committed. 
3    Number  of  offenses 

4.  Circumstances  surrounding  the  commission  of  the 
crime  that  would  demonstrate  the  unlikelihood 
of  repetition. 

5.  Activities  since  conviction,  such  as 
employment,  education  or  participation  in 
therapy,  that  would  indicate  rehabilitation. 

6.  Character  references 

7.  Certificate  of  rehabilitation  from  a  court. 

However  the  state  should  choose  to  consider 
convictions,  it  should  balance  the  risk  to  children 
versus  the  employment  rights  of  persons  who  have 


89 


criminal  conviction  records.  Simply  stated, 
conviction  data  should  only  be  used  if  it  is 
relevant  and  recent. 

d.  Who  makes  the  decision 

The  statute  should  clearly  specify  who  will  make  the 
hiring/termination  decision.   In  the  author's  view, 
it  is  essential  that  the  determination  be  made  by 
the  regulatory  agency  and  not  by  the  child  care 
program  operator  or  provider.   The  reasons  are: 

(1)  expertise.  An  agency  reviewing  numerous  criminal 
history  records  is  in  a  better  position  to  pass 
judgment  upon  whether  termination  or  hiring  is 
warranted. 

(2)  liability  exposure.  The  state,  not  individual 
programs,  is  in  a  better  position  to  absorb  the  cost 
of  potential  lawsuits. 

(3)  decision  making  by  the  state  obviates  the  need  for 
programs  to  develop  confidentiality  procedures  for 
the  receipt  of  criminal  history  information. 

(4)  Keeping  irrelevant  criminal  history  record 
information  out  of  the  hands  of  employers  eliminates 
the  potential  for  bias  against  those  who  were 
wrongfully  arrested  and  ex-offenders  who  have  been 
rehabilitated. 

(5)  provides  for  greater  uniformity  throughout  a  state 
on  what  is  a  minimum  standard  for  employment. 

(6)  since  the  state  will  have  to  do  the  clearance  on 
individual  operators  who  have  no  "director"  above 
them  anyway,  it  makes  little  sense  to  divide  the 
same  task  between  the  regulatory  agency  and  child 
care  operators. 

(7)  since  a  model  statute  should  include  an  opportunity 
to  appeal  an  adverse  employment  decision  it  makes 
sense  that  an  agency  with  appeal  procedures  already 
in  place  (the  regulatory  agency)  should  handle 
appeals.   It  then  makes  little  sense  to  divide  the 
tasks  of  making  employment  decisions  and  rendering 
decisions  on  appeals. 

e.  Due  process-  notice  and  an  opportunity  to  be  heard 

Once  a  determination  is  made,  applicants  should  be 
advised  of  the  decision  in  writing,  whether 


90 


favorable  or  adverse.   (If  staff  and  employees  are 
screened,  staff  employees,  and  employers  should  both 
be  notified) .   If  the  decision  is  not  favorable,  the 
reasons  for  termination  or  unwillingness  to  hire 
should  be  spelled  out.   Finally,  applicants  should 
be  informed  of  how  they  can  appeal  the  adverse 
decision —  to  what  agency,  within  what  time  frame, 
etc.   Any  hearing  should  be  conducted  with  the  usual 
array  of  due  process  safeguard  granted  in  other 
administrative  hearings. 

C.  Non-legal  aspects 

Costs :  Costs  for  doing  the  national  criminal  records  checks 
(F.B.I.)  are  estimated  to  be  $12;  state  screening  costs  must  be 
added  to  this  figure.  By  statute  or  regulation,  states  should 
specify  who  will  pay  these  costs.   For  example,  in  California,  no 
fee  is  charged  for  fingerprinting  or  obtaining  the  criminal  record 
of  persons  who  care  for  six  or  fewer  children.   Additionally,  as  a 
procedural  matter,  screening  should  occur  at  the  state  level  before 
prints  are  sent  to  the  FBI;  if  the  person  is  found  unacceptable  at 
the  state  level  this  obviates  the  need,  and  resulting  expense,  of 
doing  the  national  screening. 

D.  ftPPPQVAL 

Finally,  any  statute  which  intends  to  utilize  the  F.B.I,  for 
national  criminal  record  checks  must  be  approved.   Approval  should 
be  obtained  before  your  bill  goes  to  the  legislature  for  passage. 
Contact  Mr.  William  H.  Garvie,  Identification  Division,  FBI, 
Washington,  D.C.  20537,  (202)  324-5456. 
IV .   Background  Checks  and  Employment  History 

In  addition  to  the  national  criminal  record  screening  law  just 
outlined,  states  wishing  to  receive  their  full  Title  XX 
appropriation  must  also  have  in  place  laws  or  regulations  which 
provide  for  background  checks  and  employment  histories.  Again,  the 
DHHS  has  given  no  guidance  as  to  what  is  appropriately  within  the 


91 


scope  of  a  "background  check"  or  "employment  history",  how  these 
activities  are  to  be  undertaken,  or  by  whom.   Most  of  the 
considerations  outlined  previously  will  be  equally  relevant  in 
drafting  a  background  check  or  employment  history  law.  Some 
measures  states  might  wish  to  consider  are: 

A.  Attestation  To  "Clean"  Criminal  History 

States  can  require  that  those  being  screened  also  sign  a 
declaration  under  penalty  of  perjury  that  they  have  not  been 
convicted  previously  of  crimes  specified  by  the  state. 

B .  Checks  of  Dependency  Determinations  and  Parental  Terminations. 
States  can  require  that  persons  who  as  parents  or  guardians  of 
a  child  have  had  their  parental  rights  terminated  or  whose 
children  have  been  adjudicated  to  be  dependents  of  the  state 
shall  not  be  approved  as  operators,  staff  or  employees. 

C.  Checks  of  Licensing  History 

States  can  also  require  that  checks  be  made  of  any  previous 
denials,  revocations,  or  refusals  to  renew  which  occurred  in 
operating  facilities  for  dependent  persons  (children,  elderly, 
etc. )  . 

D.  objections  To  Use  of  the  Child  Abuse  Registry 

Some  states  have  chosen  to  use  their  child  abuse  registries 
for  screening.  Without  going  into  an  extended  discussion, 
this  author  contends  that  registries  should  not  be  used  for 
screening  because  they  were  developed  for  intra-family  abuse, 
are  frequently  ambiguous  in  defining  whether  conduct  is  to  be 


*  An  in-depth  examination  of  this  topic  is  available  from  the 
Child  Care  Law  Center.   Please  request  "Use  of  Statewide  Central 
Child  Abuse  Registries  for  Purposes  of  Screening  Child  Care 
Workers. " 


92 


included  in  the  registry,  and  if  so,  at  what  level  or 
classification.  Additionally,  they  generally  have  no 
procedures  to  correct  incorrect  findings.   The  author's 
comments  are  limited  to  use  of  the  registry  for  screening 
purposes,  and  she  passes  no  judgment  on  the  use  of  registries 
once  a  complaint  or  allegation  has  been  made  against  a  child 
caregiver.  However,  there  are  too  many  troublesome  facts  about 
child  abuse  registries  for  them  to  be  appropriately  used  by 
persons  other  than  law  enforcement  or  child  protection 
personnel. 

E.  Employment  History 

Employment  histories  should  include  verification  of 
educational  credentials,  and  verification  of  previous  places 
of  employment. 

F.  Character/Employment  References 

References  by  previous  employers  is  critical.   Reliance  on 
friends,  relatives  and  the  like  should  be  deemed  insufficient. 

G.  Probationary  Period 

In  addition  to  the  measures  suggested  above,  it  is  wise  to 
institute  a  probationary  period  to  determine  a  child 
caregiver's  suitability.   Child  caregivers  should  be  informed 
of  the  existence  of  the  probation  and  grounds  for  termination. 

V.    Safeguarding  Children  in  Child  Carp  Settings:  What  Can  Be 
noneJ!  Some  Recommendations 

A.    Licensing 


93 


1.  Increase  licensing' s  role  in  parent  education  re: 
licensing  requirements,  provider  communication, 
questions  to  ask,  where  complaints  can  be  made, 
indicators  of  child  abuse,  community  resources  for 
learning  about  abuse  and  helping  victims  of  abuse  etc. 
This  should  include  use  of  the  media,  as  well  as  other 
methods  and  materials. 

2.  Improve  complaint  process: 
-institute  toll  free  numbers 
-speed  response  time  and  resolution 

3.  Train  licensing  personnel  re:  investigation,  gathering 
and  preserving  evidence,  identifying  child  abuse. 

4.  Make  reasonable  parental  access  to  a  facility  a  li- 
censing requirement. 

5.  Make  availability  of  parent  roster  to  licensing  a 
licensing  requirement.   Parents  should  also  have  access 
to  a  roster,  although  parents  can  also  request  their 
names  be  deleted  from  the  list  circulated  to  other 
parents. 

6.  Create  a  separate  division  or  department  to  deal 
with  child  care  so  its  unique  nature  is  understood; 
within  this  division  separate  licensing  and 
enforcement  functions;  beef-up  enforcement  division  so 
response  time  is  improved —  which  often  means 

more  resources  for  the  legal  department. 

7.  Require  child  abuse  reports  to  be  cross-reported  to  li- 
censing and  vice  versa. 

8.  Provide  intermediate  sanctions  (fines) for  physical 
plant  and  other  non-endangering  situations  so  that  pro- 
viders are  required  to  come  into  compliance  or  face 
monetary  sanctions. 

9.  Timely  notification  of  parents  and  R  &  R  when  a  license 
is  suspended  or  revoked;  development  of  policies  for 
notification  when  administrative  action  is  not  as  grave 
as  suspension  or  revocation. 

10.  Publicize  revocations/denials,  non-renewals  of  licenses 
regularly  and  locally;  publicize  injunctions. 

11.  Add  injunctive  relief  (to  close  down  the  facility)  to 
standard  revocation  orders. 

12.  Develop  method  for  placing  licensing  revocations  on 
criminal  history  records. 

13.  Provide  for  provisional  licensing  status-  with  a  sta- 
tutory ending  period. 

14.  Develop  formal  methods  of  complaint  information  sharing 
between : 


on  cr\c\    r\ 


94 


(1)  child  care,  residential  care,  foster 

care,  etc.  (be  certain  to  check  if  they  have  had 
a  license  before  which  has  been  revoked,  denied, 
etc.) 

(2)  law  enforcement,  protective  services, 
licensing . 

(3)  state,  county,  local  officials 

Require  all  these  sources  of  information  to  be  checked 
out  before  issuing  license. 

Keep  records  when  licensee  surrenders  license. 

15.  Requirements  for  employees  in  centers-  check  at  least 
three  references  thoroughly  before  hiring;  require  a 
probationary  period  after  hire  for  evaluation. 

16.  Require  protection  for  workers  through  non-retaliatory 
provisions  for  child  care  workers  who  report  licensing 
violations. 

17.  Require  licensing  to  document  and  study  complaints  for 
purposes  of  regulatory  reform. 

18.  Interagency  agreements  between  licensing,  protective 
services,  police,  and  district  attorneys  should  be  de- 
veloped so  investigatory  responsibilities  are  not  du- 
plicated, impeded,  or  left  unperformed.  Possible  joint 
investigation  by  CPS  and  licensing. 

Child  Protective  Services/Law  Enforcement 

1.  Staff  of  these  agencies  should  be  trained  not  only  in 
identifying  child  abuse,  but  should  understand  the 
difference  between  investigations  conducted  in  the  home 
and  those  in  a  child  care  setting.   Preferable  use  of 
child  protective  worker  over  police,  and  if  police 
used,  may  want  plain  clothes  in  unmarked  car. 

2.  Notification  to  licensing  if  CPS  and  law  enforcement 
have  complaints  of  child  abuse  in  a  child  care  setting. 

3.  Development  of  procedures  for  investigation  of  child 
abuse  in  child  care,  i.e.  if  parents  are  not  targets  of 
investigation,  interviews  with  children  should  be 
conducted  at  home,  or  at  the  very  least,  parents  should 
be  notified  before  a  child  is  interviewed. 

II.    Government/Private  Resources 

A.     More  resources  devoted  to; 

-provider  training  in  the  areas  of  emergency  prepared- 
ness, child  development,  licensing  requirements,  child 
abuse  identification  and  reporting; 


95 


-adequate  subsidies  for  low-income  parents  so  they  have 
choices;  -increase  provider  wages  so  that  high  quality 
staff  can  be  attracted  and  maintained; 

-development  and  maintenance  of  R  s  R 

3.     ftpfiource  and  Referral 

-establish  complaint  policies 

-develop  choosing  child  care  programs,  publications 

-develop  means  of  training  parents  to  engage  in  on-going 
monitoring  of  care 

-help  in  training  providers  regarding  child  abuse  and  develop 
directories  of  community  resources  they  can  turn  to, 

-encourage  parents  to  listen  to  kids-  what  to  expect-  normal 
separation  anxiety  vs.  symptoms  of  trouble 

-promote  providers/parents  communication  on  a  regular 
basis  about  concerns 

-promote  positive  media  coverage  of  child  care 

:.    Parents 

-learn  about  licensing  requirements 

-learn  where  complaints  are  to  be  made 

-obtain  roster  and  talk  to  other  parents  of  children  in  care 
on  a  regular  basis 

-listen  to  kids 

-advocate  for  more  resources  for  child  care 

-visit  programs  and  see  and  judge  for  themselves 

-advise  R  &  R  and  licensing  if  programs  they  have  been 
referred  to  are  rejected  on  the  basis  of  substandard 
conditions 

o.         Employees 

-learn  licensing  regulations  and  work  with  program  to  meet; 
report  licensing  violations 

-advocate  for  in-service  training  opportunities, 
opportunities  to  learn  about  child  abuse  prevention, 
detection  and  treatment  and  provider  rights  and 
responsibilities  under  the  child  abuse  reporting  law. 

-learn  curriculum  for  teaching  children  about  abuse,  learn 
about  community  resources  available  to  interested  persons 
and  victims. 
E.     Children 

-teach  about  abuse;  how  they  can  respond;  should  be  taught 
bv  trai.-.ed  employees. 


96 


FOOTNOTES 


1.    See  for  example  the  testimony  of  June  Solnit  Sale,  Director 
UCLA  Child  Care  Services  (June  18,  1984),  Dr.  Vivian 
Weinstein,  Associate  Professor  of  Pediatrics,  King/Drew 
Medical  Center  (June  18,  1984),  Anne  Cohn,  Executive 
Director,  National  Committee  for  Prevention  of  Child  Abuse 
(March  12,  1984)  and  Dr.  Vincent  Fontana,  Medical  Director 
and  Pediatrician-In-Chief,  New  York  Foundling  Hospital  Center 
for  Parent  and  Child  Development  (March  12,  1984)  before  the 
House  Select  Committee  on  Children  Youth  and  Families.  (1984) 


2.  New  York  Times,  January  18,  1985 

3.  Arizona  House  Bill  2002,  introduced  January  14,  1985 


4.     "Victim  Files  Suit  Over  Error  that  Led  To  5  Arrests,"  New 
York  Times,  February  12,  1985. 


97 


fi> 


0 


3IG3ROTHERS/3IG  SISTERS  OFc^MERICA® 


Summary: 

ABA  Study  of  Child  Sexual  Abuse  Allegation  Reports 

(1982  -  1991) 


Jane  Nusbaum  Feller 
The  ABA  Center  on  Children  and  the  Law 

Daneen  G.  Peterson.  Ph.D. 
Research  Consultant,  BB/BS  of  America 

and 

The  BB/BSA  Child  Sexual  Abuse  Prevention  Staff  Work  Group 


FEBRUARY  1992 


230  Norm  Thirteenth  Street  *  Phtlaoelphia  •  Pennsylvania  •  19107  •  (215)567  7000  *  FAX  121515670394 


98 


PHBFACB 

This  report  is  a  summary  of  the  data  from  a  content  analysis  of  sexual  molestation  reports  filed 
with  Big  Brothers/Big  Sisters  of  America  (BB/B8A).  The  analysis  was  carried  out,  under  contract  with 
BB/BSA,  by  the  American  Bar  Association's  Center  on  Children  and  the  Law,  and  covers  allegation 
reports  Sled  over  the  period  1082  to  1001.  The  results  were  reported  in  a  document  entitled:  Analysis 
of  Molestations  Allegation  Reports  The  reports  included  in  the  anahrajs  are  ushu—  Mr  atetfana  and  in 
reviewing  the  findings,  the  following  perspective  should  be  kept  in  mind. 

In  the  early  1080s,  Big  Brothers/Big  Sisters  of  America  made  the  decision  to  collect  specific 
information  about  alleged  incidents  of  sexual  molestation  occurring  between  a  volunteer  Big  Brother  or 
Sister  and  children  served.  The  information  was  to  be  collected  as  BB/BSA  learned  of  such  incidents 
from  ha  affiliated  agencies.  It  was  anticipated  that  by  doing  so,  more  could  be  learned  about  pedophiles 
that  would  hopefully  put  BB/BSA  in  a  better  position  to  provide  guidance  to  its  agencies  to  'screen  out' 
pedophiles  from  volunteer  applicants. 

It  was  understood  that  the  case-by-case  information,  once  gathered,  would  be  confidential  and 
be  kept  by  a  national  board  appointed  legal  counsel.  The  task  of  gathering  the  data  was  assigned  to 
members  of  the  national  organization's  field  staff. 

These  field  managers  were  to  obtain  the  information  from  telephone  interviews  with  BB/BS 
agency  directors  after  being  informed  of  an  alleged  sexual  molestation  incident.  While  notifying  BB/BSA 
of  such  incidents  was  not  mandatory,  the  practice  was  soon  generally  accepted  because  executive 
directors  were  eager  to  obtain  guidance  on  how  to  handle  case  records  and  terminate  matches,  as  well  as 
how  to  respond  to  their  staffs,  boards  of  directors,  other  volunteers,  and  the  media. 

Over  the  years,  several  different  versions  of  the  sexual  molestation  forms  were  designed  and 
used,  in  an  attempt  to  obtain  more  definitive  information.  These  reporting  forms  were  not  shared  with 
BB/BS  agencies  and  the  reports  themselves  continued  to  be  privileged  information  between  the  field 
manager  and  BB/BSA' s  legal  adviser,  and  remain  so  to  this  day. 

In  1086,  the  Crisis  Management  Guide  was  distributed  to  agencies.  This  guide  encouraged 
agencies  to  report  alleged  sexual  molestations  to  BB/BSA,  with  the  reporting  often  including  other 
related  incidents,  as  the  following  summary  indicates. 

Because  the  information  was  gathered  initially  by  telephone  inquiries  with  executive  directors 
who  may  not  have  had  the  specific  information  needed  for  complete  reporting,  it  was  not  always  possible 
to  obtain  all  of  tRe  relevant  facts  at  the  time  of  the  initial  calls.  Furthermore,  some  of  the  incidents 
happened  many  years  before  coming  to  light  and  in  many  cases,  because  of  the  time  that  had  passed 
prior  to  the  Incident  being  revealed,  neither  the  alleged  perpetrator  nor  the  victim  was  still  known  to  the 
agency. 

Since  the  report  forms  had  not  been  distributed  to  BB/BS  agencies,  executive  directors  were  not 
informed  as  to  the  information  BB/BSA  needed  in  the  case  of  an  alleged  sexual  molestation.  Therefore, 
such  questions  as  date  of  initial  incidents,  frequency  and  location  of  molestations,  and  other  such 
descript.ve  information,  would  only  be  known  by  the  agency  if  the  child  and/or  parent  had  been 
interviewed  prior  to  the  telephone  inquiries. 

It  should  be  noted  that  during  the  years  covered  by  this  data,  BB/BSA  was  engaged  in  a  range  of 
programmatic  activities  that  were  designed  to  deal  directly  with  the  issue  of  child  sexual  abuse.  Some  of 
the  materials  developed  during  the  late  1980s  and  early  1990s  included  the  adoption  of  Standards  and 
Required  Procedures  for  ONE-TO-ONE  service  (1986);  Program  Management  Manual  (1988);  Agency 
Self  Assessment  and  Evaluation  (1988);  EMPOWER:  Child  Sexual  Abuse  Education  and  Prevention 
Program  (1080);  and  the  design  of  professional  staff  training  institutes,  particularly  for  caseworkers. 

Also,  during  this  period  of  time,  BB/BSA  provided  a  national  leadership  role  to  draw  the 
attention  of  other  n"*"""1  youth  organizations  to  the  issue  of  pedophilia. 

The  data  summarized  in  the  following  report,  however,  represents  the  first  systematic  content 
analysis  of  the  different  forms  that  were  used  to  report  alleged  sexual  molestation  during  the  nine  year 
period.  It  provides  a  closer  look  at  the  perpetrators  and  victims  and  the  assumed  related  circumstances. 
This  first  attempt,  while  inconclusive,  indicates  that  Big  Brothers/Big  Sisters  of  America  is  on  the  right 
track,  and  directs  the  organization  to  design  an  even  more  useful  reporting  form,  which  should  be  shared 
with  BB/BS  agencies  so  that  the  staffs  are  aware  of  relevant  data  needs. 

Dagmar  E.  McGill 

Deputy  National  Executive  Director 

February,  1002 


99 


SUMMARY:  ABA  STUDY  OF  CHILD  SEXUAL  ABUSE  ALLEGATION  REPOHT3 

(1982  1991) 

Jane  Nusbaum  Feller  Daneen  G.  Peterson,  Ph.D. 

The  ABA  Center  on  Children  and  the  Law  Research  Consultant,  BB/BS  of  America 

OVERVDZW  Awn  pprspf/tttw. 

Over  the  past  two  decades,  it  has  become  increasingly  apparent  that  child  sexual  abuse  exists  in 
our  society  and  that  the  sexual  abuse  occurs  in  a  variety  of  settings  and  is  perpetrated  by  many  types  of 
people.  Both  in  the  media  and  in  academic  circles,  intrafamilial  abuse  has  been  a  major  focus.  Sexual 
abuse  in  day  care  (and  in  other  institutions  such  as  schools,  residential  treatment  centers,  and  foster 
homes)  has  also  received  significant  attention,  particularly  from  the  media.  However,  in  the  context  of 
volunteer  youth  serving  organizations,  child  sexual  abuse  has  not  been  widely  studied.  Apart  from  some 
negative  publicity  for  these  organizations  whenever  an  allegation  of  this  nature  surfaces,  little  has  been 
written  on  the  subject,  and  even  less  actual  research  has  been  conducted.  This  analysis  of  BB/BSA 
molestations  allegations  reports  is  a  first  step  in  that  direction.  This  summary  covers  304  written 
reports  of  allegations  encompassing  the  years  1982  to  1991.  Unfortunately,  a  major  problem  effecting 
the  interpretation  of  the  data  was  the  lack  of  documentation  or  "missing  data"!  (See  Table  1  below). 

TABLE  1  -  PERCENT  OF  MISSING  DATA  BY  CATEGORY 

Categories % 

Affiliate's  identifier  (last  4  digits)  50.0 

Affiliate's  locality  type  29.3 

Civil  outcome  85.5 

Criminal  outcome  31.9 

Criminal  records  check  (Federal)  58.9 

Criminal  records  check  (Local)  52.6 

Criminal  records  check  (State)  54.9 

How  perpetrator  referred  to  program  65.8 

Location  of  incident(s)  54.3 

Month  incident(s)  occurred/began  70.1 

Number  of  incidents  26.6 

Number  of  months  into  match  incident  occurred  44.7 

Number  of  supervisory  contacts  with  perpetrator  73.0 

Number  of  supervisory  contacts  with  victim  62.2 

Perpetrator's  age  at  time  of  incident  40.8 

Perpetrator's  criminal  convictions  (other  than  from  records  check)  53.3 

Perpetrator's  criminal  history  'other  than  from  records  check)  82.2 

Perpetrator's  educational  background  67.1 

Perpetrator's  employment  status  54.3 

Perpetrator's  length  of  residence  67.1 

Perpetrator's  marital  status  31.9 

Perpetrator's  occupation  31.9 

Perpetrator's  race  76.6 

Perpetrator's  volunteer  or  employment  experience  with  children  47.7 

Source  of  allegation  to  affiliate  25.3 

Time  of  day  of  incident(s)  67.4 

Victim's  age  range  iat  date  jf  incident)  33.6 

Victim's  age  iat  date  of  incident!  53.9 

Victim's  age  iat  date  of  report'  -3.9 

Victim  ^  crade  at  date  of  incident;  s3.6 

Victim  j  jjraJe  iat  Jats  of  report)  70.1 

Victim's  primary  caretaxer  42.2 

Y-jr  incicc :it  s.  occurred,  b- -.^.m  5S-8 

Part    f  this  ir  i  -Liing  iacr  •  f  iij   rmation  can  be  attributed  to  the  difficulties  in  ascertaining 


100 


particulars  in  any  child  sexual  abuse  case.  It  is  well  known  that  cases  are  notoriously  difficult  to  prove 
in  court  (civil  or  criminal)  due  to  the  lack  of  evidence.  Two  reasons  for  the  lack  of  evidence  are  the 
involvement  of  sexual  activity  and  in  particular  sex  involving  children.  In  addition  child  molestations 
usually  occur  outside  the  purview  of  any  witness  other  than  the  child.  Moreover,  the  child  often  has 
difficulty  disclosing  the  abuse  for  a  number  of  reasons.  He  or  she  may:  have  been  threatened  to  keep 
quiet;  feel  guilty  or  embarrassed  about  the  abuse;  be  traumatized  so  as  to  have  repressed  the  abuse; 
be  too  young  to  verbalized  his  or  her  experience  or  any  combination  of  the  above.  Thus,  the  events 
BB/BS  has  attempted  to  document,  by  their  very  nature,  defy  comprehensive  documentation. 

Of  the  reports  with  information  available  about  the  location  of  the  incident  (N  =  215),  82.8%  took 
place  in  urban  locations  with:  41.9%  of  the  reports  occurring  in  large  urban  areas;  40.0%  in  medium 
urban  areas;  10.7%  in  rural  areas;  and  7.4%  in  suburban  areas.  In  comparison  the  1990  Agency 
Information  Database  (AID),  which  contains  the  Agency  Data  Survey  (ADS)  demographics  gathered 
from  the  affiliates  nationally,  indicates  that  60.8%  (n=209)  of  the  BB/BS  agencies  (N  =  344)  are  located 
in  urban  areas.  Of  those  agencies,  there  is:  21.8%  (n=  75)  in  large  urban  areas;  39%  (n=  134)  in 
medium  urban  areas;  29.9%  (n=  103)  in  rural  areas;  and,  9.3%  (n  =  32)  in  suburban  areas.  Note  that  the 
urban  agencies  as  a  group  serve  more  children  per  agency  and  that  rural  agencies  as  a  group  tend  to 
serve  fewer  children  per  agency.  These  facts  could  explain  the  discrepancy  between  the  percentiles  for 
incident  location  and  agency  location.  What  follows  is  a  geographical  distribution  of  the  allegation 
reports: 

TABLE2  -  NUMBER  AND  PERCENTILE  OF  REPOBTS  BY  STATE 


State      (N  =  304) 

51 

% 

California 

16.8 

Florida 

38 

12.5 

Ohio 

15 

4.9 

New  Jersey 

14 

4.6 

New  York 

14 

4.6 

Texas 

14 

4.6 

Illinois 

11 

3.6 

Massachusetts 

11 

3.6 

Pennsylvania 

10 

3.3 

Virginia 

9 

3.0 

Wisconsin 

9 

3.0 

Arizona 

7 

2.3 

Connecticut 

7 

2.3 

Tennessee 

7 

2.3 

Oklahoma 

6 

2.0 

Kentucky 

5 

1.6 

Utah 

5 

1.6 

Alaska 

4 

1.3 

Georgia 

4 

1.3 

Indiana 

4 

1.3 

Montana 

4 

1.3 

Washington 

4 

1.3 

Alabama 

3 

1.0 

State      (Continued) 

n 
3 

% 

Arkansas 

1.0 

Colorado 

3 

1.0 

Maryland 

3 

1.0 

Minnesota 

3 

1.0 

West  Virginia 

3 

1.0 

Washington,D.C. 

2 

.7 

Hawaii 

2 

.7 

Idaho 

2 

.7 

Michigan 

2 

.7 

Missouri 

2 

.7 

Nebraska 

2 

.7 

Nevada 

2 

.7 

New  Mexico 

2 

.7 

North  Carolina 

2 

.7 

Oregon 

2 

.7 

South  Carolina 

2 

.  1 

Delaware 

.3 

Iowa 

.3 

Kansas 

.3 

Louisiana 

.3 

Maine 

.3 

South  Dakota 

.3 

Missing 

1.3 

The  allegations  underlying  the  reports  were  first  conveyed  to  affiliates  from  a  variety  of  sources: 
the  victim's  parent  (30.3%\  police  (11.5%);  a  Big  Brother  or  a  Big  Sister  inc'.ading  the  perpetrator  him 
or  herself  (4.9%),  the  victim  1 4. 9%);  agency  staff  (4.6%);  child  protective  services  persor.r.ei  (2. 6%;;  a 
relative  i^ther  than  the  parent  ofthe  victim  (1.6%);  the  victim's  guardian  (.7%);  law  enforcement  ciher 
than  police  such  as  the  District  Attorney's  Office  ',.7%);  and  the  media  (.3%).  The  'other'  category 
'9.5%)  included  lawyers,  mental  health  professionals,  teachers  ofthe  victims,  as  weil  as  the 
perpetrators'  neighbors,  relatives,  landlords,  spouses,  and  ex-spouses. 


The  sources  of  information  for  tlus  report  came  from  a  variety  of  document.;.  ?.-:or  to  19S7 
there  *as  a  specific  BB.T3SA  form  used  to  report  the  sexual  abuse  allegations.  However,  the  form  was 
inadequate  for  capturing  all  the  necessary  information  needed  .'or  creating  profiles  .>t'the  perpetrators, 
victims,  and  circumstances  and  was  substantially  modified  in  ">~7.    Oth**r  c >-umentation  gaps  occurred 


101 


because  some  reports  were  not  made  on  the  standardized  forms.  Those  sources  included  the 
"Inappropriate  Conduct"  forms,  newspaper  clippings,  a  letter,  a  memo,  a  note,  or  some  combination  of 
those.  Together  the  lack  of  uniformity  and  the  use  of  inadequate  or  incomplete  forms  contributed  most 
dramatically  to  the  miagmp  data  problem  which  in  turn  limited  the  mterpretabflity  of  these  datum. 

The  distribution  by  number  of  matches  for  those  agencies  found  in  the  reports  (N  =  253)  was: 
8.7%  with  less  than  50  matches;  22.9%  with  50-100  matches;  37.9%  with  101-200  matches;  25.3%  with 
201-500  matches;  and  5.1%  with  501-1000  matches.  In  comparison  the  1990  AID  indicated  that  the 
match  distribution  for  417  of  the  481  reporting  agencies  was:  33.1%  (n=  178)  with  less  than  50  matches; 
25.9%  (n=  108)  with  50  to  100  matches;  23.5%  (n  =  98)  with  101  to  200  matches;  14.9%  (n  =  62)  with  201 
to  500  matches,  2.6%  (n=  11)  with  501  to  1000  matches. 

The  reports  were  processed  in  three  stages:  (1)  the  data  was  organized  into  four  categories: 
incident  classifications  -  perpetrators  -  outcomes  (criminal  and  civil)  -  victims;  (2)  the  data  was  entered 
into  a  database  using  a  statistical  computer  program  called  SYSTAT  for  analysis;  (3)  the  findings  were 
written  up  in  a  report  entitled  "Analysis  of  Molestation  Allegation  Reports".  Because  of  the  high 
percentages  of  missing  information,  for  a  given  variable,  it  will  be  very  important  to  view  all  of  the  data 
analysis  and  discussion  within  the  context  of  Table  1  above.  While  reviewing  the  following  data  also 
keep  in  mind  that  the  use  of  percentiles  can  be  misleading.  For  example:  In  a  sample  of  100  reports, 
30%  of  wfakh  involved  multiple  victims,  90%  of  which  mciuded  a  Big  Brother  or  Big  Sister,  20%  of  which 
!  males,  equals  5  people. 


DJQDENT  RKPOHT  ABUSE  CLASSIFICATIONS 

The  incidents  described  in  these  reports  may  have  occurred  years  before  the  reports  were  filed. 
In  some  cases  the  child  disclosed  the  abuse  only  after  therapy,  sometimes  even  as  an  adult.  In  other 
cases  the  child  disclosed  the  abuse  but  the  agency  was  not  informed  until  years  later.  Still  other 
incidents  were  discovered  when  the  agency  heard  about  a  former  volunteer's  recent  misconduct  and, 
after  interviewing  his  or  her  past  Littles  (or  their  parents),   found  out  that  there  had  been  abuse  in  the 


Virtually  all  reports  were  filed  after  the  match  was  terminated  and  relatively  few  identified  the 
date  of  the  incident.  Many  (38.3%)  of  the  reports  did  not  (or  could  not)  specify  even  the  year  of  abuse. 
The  incidents  with  available  dates  (n  =  186)  occurred  between  1964  and  1991.  Only  .3%  (one  incident) 
was  reported  for  the  1960s,  6.3%  (n=  19)  for  the  1970s;  51.6%  (n=  157)  for  the  1980s;  and  2.6%  (n  =  8) 
for  1990s. 

The  attempt  to  classify  the  types  of  incidents  alleged  was  very  difficult.  A  major  part  of  the 
problem  was  that  the  incidents  were  described  in  "generic"  terms  such  as:  molestation,  sexual  abuse, 
sexual  contact,  sexual  exploitation,  sexual  activities,  or  sexual  misconduct  in  35.9%  (n=  109)  of  the 
reports.  Without  specific  details  of  what  happened  it  was  impossible  to  identify  the  type  of  alleged 
misconduct.  The  table  below  represents  the  best  classifications  possible  in  light  of  the  above 
ambiguities. 

TABLE  3  -  TYPES  OF  SEXUAL  ABUSE 

Types  (N  =  304) 


Molestation  (non-specific  sexual  abuse) 

Inappropriate  sexual  touching/genital 

Oral  sex 

Penetration  penile 

'^appropriate  sexual  touching,  other 

O'.her 

Taking  sexually  explicit  photo-video  of  victim 

Exposing  victim  ur  1  Laving  victim  expose  self 

Shewing  pornography  to  victim 

Mastui  baiion  in  victims  presence 

'  .^rctr..t  exposure 

'. '  -.  mutiny  another  r  j  iiavt  sexual  conui  .i  with  victim 

.'.iissLiig'L'iLKJ'.owii,  unspecified,  or  missing 


% 

n 

35.9 

109 

14.8 

45 

9.5 

29 

8.6 

26 

3.9 

12 

3.5 

11 

2.3 

23 

" 

2.3 

m 

1.0 

3 

- 

2 

.3 

1 

14.8 

45 

102 


It  is  crucial  to  remember  that  these  groupings  often  overlap.  For  example,  exposure  may  be 
accompanied  by  the  showing  of  pornography,  or  sodomy  may  be  combined  with  other  inappropriate 
touching.  This  overlap  was  especially  common  in  reports  involving  more  than  one  incident.  For 
categorization  purposes,  the  most  severe  conduct  applicable  was  used.  Because  the  Inappropriate 
Conduct  forms  included  allegations  of  physical  abuse,  employing  prostitutes,  and  making  obscene 
telephone  calls,  they  were  included  in  the  "other"  category. 

In  65.1%  of  the  reports,  the  location  of  the  incident  was  not  specified.  In  the  reports  indicating 
the  location  of  the  incidents  (N  =  106  ),  72.6%  (n  =  77)  occurred  in  the  perpetrator's  home  and  the  vast 
majority  included  showing  pornography  to  the  victim.  However  a  substantial  portion  of  the  other  types 
of  sexual  abuse  also  took  place  in  the  perpetrators  home.  The  remaining  incidents  occurred  in  the 
perpetrator's  car  (4.7%,  n  =  5),  in  the  victim's  home  (5.7%,  n  =  6),  on  a  camping  trip  (6.6%,  n  =  7),  in  a 
hotel  or  motel  (1.9%,  n  =  2),  in  another  public  place  -  e.g.,  a  public  pool  or  restroom  (4.7%,  n  =  5),  or  in 
another  private  residence  or  building  (.9%,  n=  1),  and  (2.8%,  n  =  3)  in  multiple  places. 

No  real  connection  emerged  between  the  reports  on  the  location  of  an  incident  (65.1%,  n=  198 
with  missing  information)  and  the  time  of  year  the  incident  occurred  (38.8%  ,  n=  118  with  missing 
information).  It  is  important  to  understand  that  a  report  may  have  missing  information  for  location  or 
year  or  both,  which  would  negate  the  ability  to  make  any  connection  at  all.  Therefore  the  potential 
number  of  reports  useful  to  the  analysis  would  be  something  less  than  45.7%  of  the  indicated  available 
location  reports. 

Where  possible  (27.7%,  n=  84)  ,  it  was  calculated  how  many  months  into  the  match  the  abuse 
occurred  (or  began  to  occur).  Most  of  the  incidents  happened  early  in  the  match.  The  younger 
perpetrators  committed  their  offenses  slightly  earlier  in  the  match  than  their  older  counterparts. 

Because  information  about  the  month  of  the  incident  was  so  scarce  (e.g.,  70.1%,  n  =  213  missing), 
the  ability  to  analyze  the  data  was  limited.  What  little  data  there  was  revealed  a  slightly  higher  number 
of  incidents  in  the  summer  months,  particularly  in  August.  There  was  also  no  pattern  with  respect  to 
the  time  of  day  because  83.5%  of  the  information  was  missing  or  unknown. 

PERPETRATORS 

From  the  outset,  it  should  be  recognized  that  not  all  of  the  304  reports  involving  child  abuse 
occurred  within  the  context  of  a  match.  In  fact,  25.3%  (n  =  77)  of  the  reports  the  perpetrators  were  not 
matched  to  any  of  the  victims.  These  reports  included  adult  perpetrators  (91.1%)  who  were  at  some 
time  associated  with  a  BB,BS  agency.  The  perpetrators  fall  into  the  following  categories:  Big  Brothers 
(81.9%,  n=249);  Big  Sisters  (2%,  n  =  6);  Board  Members  (4.9%,  n=  15);  agency  staff  (2.3%,  n=7);  Little 
Brothers  (1.3%,  n  =  4);  other  (4.6%.  n=  14);  missing  (2.9%,  n  =  9).  Some  (4.6%)  of  the  perpetrators  were 
never  directly  involved  with  BB/BS  at  all  (e.g.,  the  friend  of  a  Big  Brother  or  the  husband  of  a  Big 
Sister). 

For  those  who  had  been  matched  at  some  time  the  following  table  lists  the  number  of  matches 
each  perpetrator  had  during  their  tenure  as  a  volunteer. 

TABLE  4  -  TOTAL  NUMBER  OF  MATCHES  PER  PERPETRATOR  (N= 304) 

Matches 

1 
o 

3 
4 
5 
6 

19 

Missui^  or  X  A 

Most  of  the  reports   94  7C~.  u  =  28S>  involved  male  perpetrators.  Two  percent  involved  female 


% 

n 

33.6 

102 

19.1 

58 

13.5 

41 

4.3 

13 

2.6 

8 

1.0 

3 

.3 

1 

.3 

1 

25.3 

77 

103 


perpetrators.  In  one  case  (.3%),  both  the  husband  and  the  wife  of  a  couples  match  were  perpetrators. 

Marital  status  of  perpetrators  was  available  in  68.1%  (n  =  207)  of  the  reports.  Of  those:  57% 
(n=118)  were  single;  22.2%  (n  =  46)  were  married;  and  14%  (n  =  29)  were  divorced.  The  balance  of  the 
marital  status  categories  was  divided  into:  separated  (n  =  4);  living  together  (n  =  2);  widowed  (n  =  2);  and 
unknown  (n  =  2).  Since  81.9%  (n  =  257)  of  all  the  perpetrators  (N  =  304)  were  Big  Brothers,  it  was  not 
surprising  to  find  that  the  above  percentages  for  marital  status  roughly  correspond  to  the  1990  AID 
distribution  for  male  volunteers  (e.g.,  Big  Brothers)  which  was:  51.2%  for  single  volunteers;  38.3%  for 
married  volunteers;  and,  6.1%  for  divorced  volunteers. 

Information  for  education  was  available  for  only  32.9%  (n  =  96)  of  the  reports.  Of  those  reports: 
65.6%  had  at  least  some  college  experience  which  was  categorized  as:  28%  (n  =  27)  some  college;  3.1% 
(n  =  3)  associate's  degree;  22.9%  (n  =  22)  bachelor's  degree;  7.2%  (n  =  7)  master's  degree;  and  4.2% 
(n  =  4)  professional  degree  (e.g.,  Ph.D.,  medical  doctor,  lawyer).  For  male  volunteers  the  1990  AID 
reports  that  a  similar  disproportionate  number  of  volunteers  (79%)  fell  in  the  college  educated  group. 

At  the  time  of  the  alleged  incident  the  perpetrators  identified  in  the  reports  ranged  in  age  from 
13  (a  Little  Brother)  to  age  62.  The  distribution  for  age  at  both  the  time  of  incident  and  the  time  of 
reports  were  as  follows: 


TABLE  5  -  AGEOFPEEPETBATOEATTIMEOFIN 

CEDENT  OE  AT  TIME  OF  REPO 

At  time  of  incident  (N = 304) 

At  tinw»  of  report  (N  =  304) 

Arc 

%                       u_ 

%                      _n_ 

13-19 

2.6                       8 

1.8                       6 

20-29 

26.0                     79 

29.4                     90 

30-39 

18.1                     55 

27.7                     85 

40-49 

8.2                     25 

14.8                     45 

50-59 

3.3                     10 

6.0                     18 

60-69 

.6                       2 

1.2                       4 

70  + 

0                       0 

.7                       2 

Missing 

40.8                    124 

17.4                     53 

Because  the  question  of  race  did  not  appear  on  the  latest  allegations  report  form  the 
perpetrator's  race  was  either  not  indicated  or  not  known  in  77%  (n=234)  of  the  reports.  Of  the 
perpetrators  reported  (N  =  70):  59  (84.3%)  were  White;  5  (7.1%)  were  Black;  3  (4.2%)  were  Hispanic;  2 
(2.8%)  were  Asian;  and  1  (  1.1%)  was  "other*  (Indian).  A  similar  distribution  for  male  volunteers  can  be 
found  in  the  AID  where:  35.8%  are  White;  9.2%  are  Black;  2.3%  are  Hispanic;  .9%  are  Asian;  and  1.8% 
are  other. 

The  occupational  background  and  BB/BS  association  of  the  perpetrators  were  as  follows: 

TABLE  6  -  PEBPETEATOB'S  OCCUPATION  AND  ASSOCIATION  WITH  BB/BS 

%  male  vols 


Occupations  (N  =  203) 

% 

n 

(N  =  25,862) 

BB/BS  Association  (N  =  304) 

_%_ 

n 

Clerical 

6.S 

14 

2.2 

Big  Brother 

81.9 

249 

Craft 

ll.S 

24 

4.3 

Big  Sister 

2.0 

6 

Labor 

8.3 

17 

5.3 

Board  Member 

4.9 

15 

Mgn.:  Admin 

ll.S 

24 

142 

Agency  Staff 

2.3 

7 

Operatives 

6.3 

14 

2.6 

Little  Brother 

1.3 

4 

Prof.Tech 

29.0 

59 

35.9 

Other 

4.6 

14 

Sales 

6.3 

14 

9.8 

Missing  or  N.A 

2.9 

9 

Service 

8.3 

19 

5.9 

Student 

5.4 

11 

9.5 

Other 

2.9 

6 

2.5 

Unknown 

.9 

o 

7.9 

104 


Over  half  of  all  the  reports  (52.61,  n  =  160)  did  not  contain  information  on  a  criminal  records 
check  and  in  addition  some  of  the  reports  (14.8%,  n  =  45)  indicated  that  a  criminal  records  check  was 
never  done.  It  should  be  noted  that  currently  two  states.  New  York  and  New  Jersey,  in  which  9%  of  the 
incidents  occurred  (See  Table  2),  do  not  have  formal  mechanisms  for  obtaining  criminal  records  checks. 
In  addition,  in  the  past,  there  have  been  other  states  with  similar  barriers  to  criminal  records  checks,  the 
most  notable  being  California.  Only  2.3%  of  the  reports  revealed  an  arrest  or  conviction  from  records 
checks.  Perpetrators  with  a  criminal  history  discovered  by  a  records  check  were  involved  in  only  one 
exposure  report,  one  inappropriate  touching  report,  and  one  sodomy  report.  However,  17.1%  of  the 
reports  revealed  some  sort  of  criminal  history  information  about  the  perpetrator  which  was  not  obtained 
by  a  records  check. 

Patterns  were  difficult  to  discern  with  respect  to  the  typical  perpetrator's  experience  of  working 
or  volunteering  with  children,  mostly  because  of  a  lack  of  data  (49.7%).  The  spectrum  of  the  youth 
related  experiences  included:  other  BB/BS  programs  (n  =  22);  formal  youth  serving  organizations  and 
church  youth  groups  (n  =  58);  recreation  activities  (n  =  27);  schools  (n  =  27);  and  child  care  •  e.g., 
babysitters,  camp  counselors  (n=12).  Twenty  of  the  reports  described  "other"  volunteer  experience 
(e.g.,  foster  care,  less  formal  activities)  and  20  described  "other"  employment  experience  (e.g.,  juvenile 
counselors,  employees  at  residential  centers  for  youths).  It  should  be  understood  that  one  perpetrator 
could  fall  in  several  or  all  of  the  categories,  so  the  figures  given  above  should  be  viewed  with  that  aspect 
in  mind. 

Of  the  86  perpetrators  (28.4%  of  the  total  number  of  reports)  for  which  length  of  residency 
information  was  available,  it  was  found  that  perpetrators  tended  to  reside  for  a  substantial  length  of 
time   in  the  community  where  the  alleged  incident  (s)  took  place.    In  fact,    47.7%  (n  =  41)    of  the 
perpetrators  lived  in  the  area  for  over  10  years;  18.6%  (n=  16)  for  5  to  10  years;  10.4%  (n  =  9)  for  3  to  5 
years;  16.3%  (n  =  14)  for  1  to  3  years;  and  the  balance  of  7%  (n  =  6)  for  less  than  1  year. 

In  73%  of  the  reports,  no  information  was  given  on  the  number  of  supervisory  contacts  during 
the  match.  For  those  reports  that  did  contain  that  information  (15.5%),  the  number  of  contacts  ranged 
from  2  to  80.  Three  major  issues  that  can  have  a  direct  effect  on  those  number  of  contacts  are:  (1) 
length  of  the  match;  (2)  varying  definitions  of  "supervisory  contacts";  (3)  varying  record-keeping 
systems  and  capabilities.  Because  these  issues  have  a  direct  impact  upon  the  interpretability  of  the  data 
there  is  little  to  discuss. 

-^  OUTCOMES  INVOLVING  CRIMINAL  AND  CIVIL  PROSECUTION 

For  (34.5%,  n=105)  of  the  reports,  the  criminal  treatment  of  the  allegations  was  missing  or 
unknown.  For  the  others  (65.5%,  n=  105),  the  legal  system  resolutions  were  as  follows:  44  (14.5%)  no 
action;  80  (26.3%)  charged  or  arrested  (no  disposition);  31  (10.2%)  charged  or  arrested  and  conviction; 
30  (9.9%)  charged  or  arrested  and  guilty  plea;  5  (1.6%)  charged  or  arrested  and  dismissal  (not  guilty);  5 
(1.6%)  suicides;  4  (1.3%)  applicants  were  rejected  or  terminated  based  on  criminal  history.  Unsuccessful 
criminal  prosecutions  were  rare  among  the  reports.  Only  1.6%  of  the  reports  indicated  that  criminal 
charges  against  the  perpetrator  were  dropped  or  dismissed,  or  that  he  or  she  was  found  "not  guilty". 

Even  fewer  reports  (14.5%,  n  =  35)  addressed  the  question  of  civil  litigation  involving  the 
allegations.  In  85.5%  of  the  cases,  this  information  was  missing.  Civil  resolutions  were  as  follows:  no 
lawsuit  filed  (6.3%,  n=  19);  suit  filed  against  affiliate  and  resolution  unknown  (3.3%,  n=10);  suit  filed 
against  both  affiliate  and  BB/BSA  and  was  settled  (n  =  2,  .7%);  suit  filed  against  both  and  resolution 
unknown  in  =  2,  .7%);  suit  filed  against  affiliate  and  settled  (.3%,  n=  1);  suit  filed  against  BB/BS  and 
resolution  unknown  (.3%,  n=  1);  "unknown"  which  included  threats  but  no  suit  yet  filed  (3.0%,  n  =  9). 

VICTIMS 

At  least  one  victim  was  a  Little  Brother  in  71.7%  (n  =  2181  of  the  reports  and  a  Little  Sister  in 
4.6%  (n  =  14)  of  the  reports.  Some  of  the  victims  were  indirectly  associated  with  the  program  as  siblings 
(5.9%,  n-lS)  or  other  family  members  or  friends  (4.3%,  n=  13)  of  a  child  in  the  program.  Victims  who 
were  generally  unrelated  to  any  BBBS  program  were  involved  in  32.2%  (n  =  98)  of  the  reports  ie.g., 
perpetrator's  own  children,  others  involved  in  some  youth  activity,  neighbors,  or  complete  strangers.) 

Of  the  304  reports.  31.9%   (n  =  97!  indicated  that  multiple  victims  were  involved.    The  total 


105 


number  of  victims  (N  =  458)  included  both  children  participating  in  a  BB/BS  program  and  those  with  no 
connection  to  the  program.  However,  there  were  17  reports  where  more  than  one  victim  was  indicated 
but  the  total  number  was  not  specified  For  those  reports,  the  victim  count  was  recorded  as  a  quantity 
of  "one".  As  a  result,  the  number  of  victims  (n  =  458)  is  under-represented.  Of  the  304  reports  involving 
all  victims,  70.7%  (n  =  215)  of  the  reports  indicated  that  at  least  one  of  the  victims  was  matched  with  the 
perpetrator. 

More  than  half  (54.1%)  of  the  reports  gave  no  indication  of  the  victim's  age  at  the  time  of  the 
incident.  For  some  of  the  reports  where  the  age  of  the  victim  was  reported,  it  was  not  clear  when  or 
what  age  was  recorded.  For  example  the  age  recorded  could  have  been:  (1)  at  the  time  of  the  incident; 
(2)  at  the  time  of  the  report;  or  (3)  at  some  point  during  the  range  spanning  the  length  of  the  abuse 
period. 

Preteen  and  early  teenage  children  comprised  a  disproportionate  number  of  victims  in  the 
report.  This  was  not  surprising  because  as  demonstrated  below  the  percentage  of  male  clients  being 
served  by  BB/BS  are  roughly  proportionate  to  the  victim  group.  What  follows  is  a  table  of  the  ages  of 
the  victims  at  both  the  time  the  incident  occurred  and  at  the  time  that  the  report  was  made.  For 
comparison,  since  most  of  the  victims  were  Little  Brothers  (71.7%,  n  =  218),  the  following  table  includes 
the  distribution  by  percents  of  the  male  clients  being  served  by  BB/BS  according  to  the  data  from  the 
1990  Agency  Data  Survey  (ADS). 

TABLE7  -  AGE  OF  VICTIM  AT  TIME  OF  INCIDENT  OB  TIME  OF  BEPOBT 

AtThneOfInadent(N=130)       %  OF  MALE  CLIENTS       At  Time  Of  Report  (N=214) 

Age  % n  (N= 25339)  %_ 

1 

2  1.5  2 

4  1.5  2 

5  -2 

6  .8  1  .9 

7  5.8  7  3.0 

8  6.2  8  5.9 

9  10.0  13  9.1 

10  18.5  24  11.6 

11  10.0  13  13.3 

12  16.9  22  12.7 

13  13.8  18  13.0 

14  4.6  6  10.4 

15  7.7  10  7.9 

16  5.6 

17  1.5  2  3.6 

18  2.1 

19  .8  1  1 
20 
21 
22 
23 
24 
26 
28                     .8                        1 

Many  (43.8^)  of  the  reports  involved  multiple  incidents  (i.e.  the  number  of  times  any  one  child 
was  victimized)  for  ai  ieast  one  of  the  victims  listed.  There  was  no  clear  relationship  between  the 
number  of  incidents  and  the  victim's  age. 

Most  cf  the  reports  i85.6<*)  were  missing  data  on  the  principle  victim's  grade  level  at  the  time  of 
the  incident!  s  ..  Those  reports  in  which  grade-level  information  was  available  are  fairly  evenly 
distributed  among  the  grades  with  a  slightly  higher  percentage  identifying  third  graders  as  victim. 


n 

.5 

1 

.9 

2 

.9 

2 

.5 

1 

.9 

2 

3.3 

7 

3.3 

7 

6.1 

13 

10.3 

22 

10.3 

22 

12.1 

26 

11.7 

25 

8.9 

19 

10.7 

23 

3.3 

7 

5.6 

12 

2.8 

6 

2.8 

6 

1.4 

3 

.5 

1 

.9 

2 

.9 

2 

.5 

1 

.5 

1 

.5 

1 

106 


Of  the  304  reports,  42.4%  failed  to  comment  on  the  victim's  primary  caretaker,  and  in  .7%  of  the 
reports  the  primary  caretaker  was  unknown.  Of  the  reports  that  mentioned  primary  caretaker 
(N  =  170),  the  principle  victim's  primary  caretaker  was  a  single  parent  90%  of  the  time,  of  which  89.4% 
(n=  152)  were  females  and  .6%  (n=  1)  was  a  male.  This  preponderance  of  single  parent  households  is 
similar  to  the  distribution  for  male  clients  found  in  the  AID  (88.1%).  It  is  not  recorded  in  the  AID 
whether  the  single  parent  is  male  or  female  but  typically  it  is  the  mother. 

CONCLUSIONS 

If  files  are  to  be  maintained  on  the  known  sexual  abuse  allegations  it  is  important  to  reflect  on 
the  issues  covered  in  this  report.  While  the  right  general  questions  were  asked ,  sometimes  they  were 
not  as  specific  as  they  should  have  been.  In  many  instances,  this  lack  of  specificity  arose  because  either 
the  questions  on  the  forms  or  their  responses  were  vague.  One  notable  omission  was  that  the  forms 
didn't  ask  whether  the  abuse  occurred  more  than  once,  and  if  so,  how  often  and  over  what  period  of 
time. 

It  is  suggested  that  the  current  forms,  used  for  reporting,  be  redesigned  into  a  single  document 
which  would  be  used  uniformly  across  the  country.  The  success  of  such  an  effort  depends  not  only  on 
the  creation  of  a  new  form  that  asks  all  the  "right"  questions,  but  in  the  diligent  completion  of  that  form 
and  a  nationwide  campaign  to  use  the  form  consistently  for  all  appropriate  allegations. 

In  summary,  much  of  the  missing  data  could  be  obtained  with  the  use  of  explicit  and  uniform 
forms;  diligent  record-keeping  and  follow  up;  as  well  as  implementing  rigorous  reporting  policies  and 
procedures. 


107 


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AMERICAN  BAR  ASSOCIATION 


Center  on  Children 
and  the  Law 

1600  M  Stffr.    NW 
Wltrimmon    DC  200)6 
.202.   1)1.2230 
ABA  Ftt  .2021  ))1  2220 


..  -j-  .\ 

CMMt   *dTT>.n..i..li,.   Slj.p 


August  13,  1993 

The  Honorable  Don  Edwards 
Chairman,  Subcommittee  on 

Civil  and  Constitutional  Rights 
House  Committee  on  the  Judiciary 
Rayburn  House  Office  Building,  Rm.  806 
Washington,  D.C.   20515-6220 

Dear  Congressman  Edwards: 

On  July  16, 1993,  the  Subcommittee  on  Civil  and  Constitutional  Rights  held 
a  hearing  on  H.R.  1237,  the  "National  Child  Protection  Act."  We  are 
providing  information  requested  for  inclusion  in  the  written  record  of  this 
hearing.  At  the  outset,  we  want  to  applaud  the  Subcommittee's  efforts 
toward  developing  a  stronger  national  system  for  identifying  persons  with 
criminal  backgrounds  who  work  with  or  seek  to  work  with  children.  The 
proposed  Act,  which  is  the  subject  of  these  hearings,  presents  a  framework 
worthy  of  consideration. 

The  American  Bar  Association  Center  on  Children  and  the  Law  is  currently 
conducting  a  study  which  we  believe  would  greatly  assist  in  the  planning  and 
implementation  of  a  national  background  screening  system  for  child  care 
and  youth  service  workers.  The  development  of  effective  legislation,  always 
a  difficult  task,  is  compounded  in  the  present  situation  by  the  dearth  of 
empirically-based  literature  assessing  criminal  record  screening  of  child  care 
and  youth  service  workers.  Our  current  two-year  study,  funded  by  the 
Department  of  Justice  through  its  Office  of  Juvenile  Justice  and 
Delinquency  Prevention,  will  assist  in  filling  this  void.  The  study  will  provide 
a  comprehensive  overview  and  evaluation  of  screening  practices,  including 
criminal  record  checks,  that  are  used  to  identify  potentially  abusive 
employees  and  volunteers  and  will  make  recommendations  regarding  a 
national  approach  to  screening.  The  final  report  and  recommendations  will 
be  completed  by  June  1994,  although  some  of  the  results  may  be  available 
earlier.  (Enclosed  is  a  project  summary  as  well  as  a  legal  and  social 
literature  review  discussing  screening  methods,  including  criminal  record 
checks.) 

Our  preliminary  findings  indicate  that  there  are  significant  factors  that  will 
impact  on  the  establishment  of  a  national  background  check  system.  In 
particular,  the  Committee  may  wish  to  consider  the  extensive  time  it  takes 
to  receive  requested  information,  typically  as  long  as  6  to  8  weeks,  often 


108 


causing  organizations  to  hire  individuals  before  a  background  check  is  completed.  Further, 
it  appears  that  the  criminal  record  information  requested  may  be  incomplete;  disposition 
data  is  often  lacking  or  cannot  always  be  linked  to  an  original  arrest  record.  Moreover, 
there  are  significant  costs  associated  with  automating  and  updating  criminal  history 
information  systems,  as  well  as  in  requesting  a  federal,  state,  or  local  background  check  (for 
example,  the  FBI  charges  $23.00  per  fingerprint  check,  while  state  fees  may  run  as  high  as 
$27.00).  Ascertaining  the  extent  of  these  costs  and  which  individual,  organization  or 
government  agency  will  pay  for  them  is,  therefore,  implicated  in  any  decision  to  establish 
a  national  background  check  system. 

In  addition,  the  Department  of  Defense  and  other  federal  agencies,  pursuant  to  Subtitle  E 
of  the  Crime  Control  Act  of  1990,  have  attempted  to  implement  provisions  similar  to  those 
currently  proposed  in  the  National  Child  Protection  Act.  Their  experience,  which  will  be 
reviewed  and  evaluated  in  the  OJJDP-funded  study,  would  prove  invaluable  in  determining 
whether  to  enact  the  proposed  Act  or  whether  changes  are  advisable.  Specifically,  the  study 
will:  (1)  indicate  the  length  of  time  required  to  implement  the  criminal  background  check 
systems  required  of  various  federal  agencies  under  Subtitle  E;  (2)  detail  the  costs  and 
analyze  the  effectiveness  of  those  systems;  and  (3)  delineate  any  problem  areas  that  may 
have  slowed  the  implementation  or  made  it  more  costly. 

Given  the  limited  funds  available  in  this  time  of  fiscal  constraint,  and  to  ensure  that 
Congress  and  the  states  are  prepared  to  adequately  fund  any  legislation  enacted,  we  offer 
the  Subcommittee  this  information  as  it  considers  the  proposed  Act.  In  the  event  that 
related  legislation  requiring  criminal  background  checks  is  considered  in  the  future,  the 
Subcommittee  may  wish  to  review  the  study's  findings  regarding  the  effectiveness  and  costs 
of  various  background  screening  methods. 

We  thank  you  for  this  opportunity  to  provide  you  with  information  regarding  the  study  and 
hope  that  our  comments  have  proved  useful.  If  we  can  be  of  further  assistance,  please 
contact  Noy  Davis,  Esq.,  Project  Manager,  at  (202)  331-2244. 


'.(.,( 


— -Susan  Wells,  Ph.D. 
Project  Director 


/: 


Noy  S.  Davis,  Esq. 
Project  Manager 

Kimberly  Dennis,  M.P.A. 
Research  Associate 


109 


EFFECTIVE  SCREENTNG  OF  CHILD  CARE  AND  YOUTH-SERVING  WORKERS 

Project  Summary 

.Statement  of  the  Problem 

There  are  many  volunteers  and  paid  personnel,  working  in  child/youth-serving 
organizations,  who  have  direct  contact  with  children  and  youth.    Most  are  dedicated  and 
caring  individuals.   Too  often,  though,  employees  or  volunteers  of  such  organizations  have 
used  their  position  to  victimize  young  persons. 

Various  state  and  federal  laws  and  regulations  on  procedures  for  screening  employees 
and  volunteers  of  child/youth-serving  organizations  have  been  adopted  over  the  last  several 
years.    However,  no  comprehensive  information  is  available  as  to  what  screening  practices 
are  now  mandated  and  utilized,  and  how  effective  particular  screening  practices  have  been  in 
identifying  potential  employees  and  volunteers  who  might  harm  the  children  and  youth  they 
would  be  serving. 

Goals  of  the  Project 

(1)  To  provide  a  comprehensive  overview  of  screening  practices,  including  criminal 
record  checks,  that  are  used  in  public  and  private  sector  child/youth-serving 
organizations  to  identify  potentially  abusive  employees  and  volunteers;  and 

(2)  To  evaluate  the  effectiveness  of  current  screening  practices  in  protecting  children  and 
make  recommendations  regarding  a  national  approach  to  screening. 

Project  Specifics 

This  two-year  project  has  been  undertaken  by  the  Center  on  Children  and  the  Law  of 
the  American  Bar  Association  pursuant  to  a  grant  from  the  federal  Office  of  Juvenile  Justice 
and  Delinquency  Prevention.   The  Center  on  Children  and  the  Law  is  a  project  of  the  ABA 
Young  Lawyers  Division. 

The  project  staff  includes: 

Susan  J.  Wells,  Ph.D.,  Project  Director; 
Noy  S.  Davis,  J.D.,  Project  Manager/ Attorney; 
Kimberly  Dennis.  M.P.A.,  Project  Research  Associate; 
Cheryl  Hinton,  Project  Secretary. 

In  order  to  utilize  certain  organizations'  considerable  expertise  regarding  issues  and 
methods  involved  in  this  project,  the  project  has  established  subcontracts  with: 

Westat,  Inc.; 

National  Collaboration  for  Youth; 

American  Public  Welfare  Association; 

National  School  Boards  Association;  and 

Center  for  Child  Protection  and  Family  Support. 


110 


Project  Methodology 

Specific  project  tasks  include  but  are  not  limited  to: 

(1)  Developing  a  directory  of  child/youth-serving  organizations  and  agencies,  complete 
with  a  listing  of  professions,  jobs  and  volunteer  positions,  the  estimated  number  of 
individuals  in  those  given  professions  and  positions,  and  the  estimated  number  of 
children  served.    The  directory  will  serve  to  identify  the  potential  universe  of  those 
who  work  with  or  around  children  and  analyze  the  degree  of  risk  and  accessibility  to 
children  in  different  settings. 

(2)  Reviewing  state  statutes,  regulations,  legislation  and  policies  regarding  the  licensing 
and  oversight  of  child/youth-serving  organizations  and  their  professionals  and 
volunteers.    This  review  and  analysis  will  determine  the  numerous  state  requirements 
and  to  what  degree  these  mandates  vary  both  between  and  within  the  states  for  a 
given  setting. 

(3)  Conducting  a  nationwide  survey  of  child/youth-serving  organizations  regarding  types. 
costs,  and  effectiveness  of  their  screening  methods.    Among  other  things,  this  survey 
will  help  capture  how  often  and  in  what  types  of  organizations  screening  takes  place 
and  in  what  types  of  organizations  abuse  is  most  likely  to  occur. 

(4)  Conducting  an  in-depth  supplemental  study  on  the  effectiveness  of  screening  practices 
in  conjunction  with  the  Department  of  Defense.   This  piece  will  provide  concrete 
information  on  the  implementation,  results  and  evaluation  of  background  screening 
methods,  (in  particular,  criminal  record  checks).   The  Department  of  Defense  makes 
an  excellent  host  for  such  a  study  due  to  the  law  (P.L.  101-647)  mandating  screening 
of  all  employees  in  federally-operated  or  federally-contracted  child  caring  facilities 
and  the  variety  of  settings  (e.g.,  child  development  centers,  schools,  medical 
facilities,  and  voluntary,  recreational  groups)  in  which  DoD  serves  children. 

Additional  project  tasks  include: 

(1)  Reviewing  relevant  legal  and  social  science  literature; 

(2)  Conducting  a  survey  of  the  insurance  industry  regarding  insurers'  requirements  and 
recommendations  for  screening  procedures  by  child/youth-serving  organizations:  and 

(3)  Preparing  a  final  report,  which  will  include  recommendations  regarding  a  national 
approach  to  screening  of  child/youth-serving  organization  employees  and  volunteers. 


For  further  information  contact:  Noy  S.  Davis  (202)  331-2244  or  Kimberly  Dennis  (202) 
331-2669,  ABA  Center  on  Children  and  the  Law,  1800  M  Street,  N.W.,  Suite  200S, 
Washington.  D.C.   20036.    A  copy  of  The  Effective  Screening  of  Child  Care  and  Youth 
Service  Workers:  A  Review  of  the  Literature  is  available  from  the  Center  for  $12.00.   The 
Final  Report  and  Recommendations  of  the  Project  will  be  available  in  June  1994. 


Ill 


EFFECTIVE  SCREENING  OF  Kimberly  Dennis,  MP.  A 

CHILD  CARE  AND  YOUTH-  Noy  S.  Davis,  Esq. 

SERVICE  WORKERS:  A  ABA  Center  on  children  and  the  Law 

Review  of  the  Literature  A  project  of  the  Young 

Lawyers  Division, 
May  1993  American  Bar  Association 

Prepared  under  Grant  No.  92-MC-CX-0013  from  the  Office  of 
Juvenile  Justice  and  Delinquency  Prevention,  Office  of  Justice 
Programs,  U.S.  Department  of  Justice. 

Points  of  view  or  opinions  in  this  document  are  those  of  the 
authors  and  do  not  necessarily  represent  the  official  position  or 
policies  of  the  U.S.  Department  of  Justice. 

The  views  or  opinions  expressed  herein  have  not  been  approved 
by  the  House  of  Delegates  or  Board  of  Governors  of  the 
American  Bar  Association  and,  accordingly,  should  not  be 
construed  as  representing  the  policies  of  the  American  Bar 
Association. 

This  report  was  developed  as  part  of  the  research  project  on 
Effective  Screening  of  Child  Care  and  Youth-Service  Workers 
by  the  grantee,  the  American  Bar  Association  Center  on 
Children  and  the  Law. 

The  project  staff  includes: 

Susan  J.  Wells,  Ph.D.,  Project  Director; 
Noy  S.  Davis,  J.D.,  Project  Manager/ Attorney; 
Kimberly  Dennis,  M.P.A.,  Project  Research  Associate; 
Cheryl  Hinton,  Project  Secretary. 

For  more  information  about  this  report  contact: 

Kimberly  Dennis 

ABA  Center  on  Children  and  the  Law 

1800  M  Street,  NW 

Suite  200  South 

Washington,  DC   20036 


°  1993,  American  Bar  Association 


112 

TABLE  OF  CONTENTS 

INTRODUCTION  1 

I.  PROBLEM  STATEMENT  3 

A.  Growing  Number  of  Children  in  Out-of-Home  Care  4 

B.  Speculation  on  the  Number  of  Adults  Who  Come 

Into  Contact  with  Children  5 

C.  Incidence  of  Extrafamilial  Abuse  6 

D.  Identifying  "Child  Abuse":  The  Need  for  a  Uniform  Definition  6 

E.  Failure  to  Take  Strong  Action  Against  Abuse  in 

Out-of-Home  Settings  7 

II.  PREVENTING  EXTRAFAMILIAL  ABUSE  - 

NO  EASY  ANSWERS  9 

A.  Difficulty  in  Profiling  Child  Abusers  9 

B.  The  Recidivistic  Nature  of  Child  Abuse  1 1 

C.  Limitations  of  Attempting  to  Profile  Offenders  13 

III.  NATIONAL  INITIATIVES  15 

A.  Early  Efforts  15 

B.  More  Recent  Federal  Initiatives  17 

IV.  STATE  SCREENING  LAWS: 

A  MYRIAD  OF  APPROACHES  18 

A.  Licensing  19 

B.  Access  to  Criminal  History  Information  20 

V.  USE  OF  CRIMINAL  RECORD  CHECKS  FOR 
PRE-EMPLOYMENT  AND  LICENSING  PURPOSES  22 

A.  Background  on  Criminal  History  Information  Systems  23 

B.  Child  Offender  Arrests  and  Convictions  are  Lacking  24 

C.  Likelihood  of  Discovering  an  Individual  with  a  Criminal  Record  25 

D.  The  Growing  Use  of  Criminal  Records  for  Employment 

and  Licensing  Purposes  27 

E.  Criminal  History  Information  and  Data  Quality  Issues: 

Cause  for  Concern  29 

F.  Disadvantages  and  Criticisms  of  Criminal  Record  Checks  34 

G.  Legal  Issues  Arising  From  the  Use  of  Criminal  Record  Checks  42 
H.       Unanswered  Questions,  Unresolved  Issues  47 


113 


VI.  OTHER  SCREENING  MECHANISMS  50 

A.  Screening  Against  State  Central  Child  Abuse  Registries  50 

B.  Screening  Against  State  Sex  Offender  Registries  55 

C.  National  Practitioner  Data  Bank  58 

D.  Teacher  Identification  Clearinghouse  59 

E.  Application  Forms  and  Personal  Interviews  60 

F.  Reference  Checks  63 

G.  Psychological  Tests  65 
H.  Additional  Pre-Employment  Screening  Options  68 
I.  Post-hiring/Placement  Procedures  to  be  Used 

in  Conjunction  with  Background  Screening  69 

J.  Summary  Statement  Regarding  Screening  Methods  70 

VII.  CONCLUSIONS  AND  RECOMMENDATIONS  70 

A.  Summary  -  What  We  Know  to  Date  70 

B.  Preliminary  Recommendations  for  Effective  Screening  72 

C.  Looking  Ahead  to  More  Effective  Screening  and 

Other  Prevention  Efforts  75 


ENDNOTES  77 

REFERENCES  AND  SELECTED  BIBLIOGRAPHY  81 


114 


INTRODUCTION 

Although  it  is  relatively  easy  to  check  on  a  potential  employee  or 
volunteer's  basic  professional  capability,  securing  reliable  information  about  an 
applicant's  moral  adequacy  is  not  always  so  simple.   The  ever-increasing  need 
for  credible  background  information  is  stymied  by  a  limited  ability  to  obtain  it. 
Organizations  that  engage  child  care  and  youth-service  workers  are  struggling 
with  this  very  dilemma  —  a  dilemma  that  has  intensified  under  the  media's 
spotlight  on  sensational  child  abuse  cases  and  parents'  growing  anxiety  about 
their  children's  safety  in  out-of-home  care. 

In  response,  legislators,  child  advocates,  child-  and  youth-serving 
organizations  and  other  concerned  individuals  are  eagerly  seeking  out  methods 
guaranteed  to  prevent  child  abuse  in  out-of-home  settings.   The  search  thus  far 
has  unearthed  some  complex  and  unresolved  issues  about  extrafamilial  child 
abuse,  while  fueling  the  debate  over  what  is  the  most  effective  way  to  identify 
employees  and  volunteers  who  may  potentially  harm  the  children  they  serve. 
Much  of  the  focus  has  centered  on  the  growing  use  of  criminal  history  record 
checks.    The  current  situation  has  thus  prompted  several  questions,  including: 

►  To  what  extent  is  child  abuse  perpetrated  by  child  care  and  youth- 
service  workers  in  out-of-home  settings? 

►  What  are  the  different  screening  mechanisms  available  to  help  identify 
potentially  abusive  employees  and  volunteers  during  the  selection 
and/or  hiring  process? 

►•       How  effective  are  each  of  these  screening  mechanisms  in  preventing 
extrafamilial  abuse? 


► 


Should  child-  and  youth-serving  organizations  be  mandated  by  law  to 
conduct  criminal  record  checks  on  all  employees  and  volunteers  who 
may  come  into  contact  with  children  and  youth,  even  if  such  contact  is 
on  an  infrequent  basis? 

►       Is  the  quality  of  information  gained  from  screening  methods  worth  the 
substantial  human  resource  and  financial  expenditures,  or  are  there 
more  cost-effective  measures  we  can  take  to  prevent  child  abuse? 

What  follows  is  a  discussion  of  this  quandary,  based  on  a  review  of 
literature  (1980  to  1992)  pertaining  to  the  screening  of  employees  and/or 
volunteers  who  may  be  unsuitable  to  work  with  or  around  children.   The 
emphasis  of  this  report  is  on  the  use  of  criminal  record  checks  to  ferret  out 
unacceptable  applicants.    Readers  should  note  that  our  research  uncovered  few 
empirically  based  studies,  reports  or  articles  which  document  the  effectiveness 
of  screening  practices  ~  particularly  criminal  record  checks  —  both  in  terms  of 
identifying  potential  child  abuse  offenders  and  making  the  best  use  of  scarce 


115 


funds.   Taken  together,  the  literature  exposed  a  mix  of  opinions  and 
experiences  regarding  screening  of  child  care  and  youth-service  workers. 
Unfortunately,  most  of  these  views  were  not  sufficiently  backed  by  the  solid, 
factual  data  needed  to  formulate  sound  decisions  and  prudent 
recommendations. 

This  review  thus  begins  with  a  general  assessment  of  the  problem  and 
nature  of  extrafamilial  child  abuse  (Sections  I  and  II)  and  then  hones  in  on 
matters  specific  to  screening  techniques,  in  particular  criminal  record  checks. 
Topics  addressed  in  Sections  III  through  V  include  national  legislative 
initiatives  regarding  background  screening;  the  myriad  of  state  laws, 
regulations  and  statutes  pertaining  to  screening;  and  implications  of  the 
growing  use  of  criminal  history  record  checks  for  pre-employment  and 
licensing  purposes.   The  latter  topic  area  includes  a  discussion  of  criminal 
history  information  and  data  quality  concerns,  disadvantages  of  criminal  record 
checks  and  legal  issues  pertaining  to  the  use  of  criminal  record  checks.    A 
cursory  look  at  other  screening  options  (e.g.,  state  child  abuse  registry  checks, 
interviews,  psychological  tests)  is  then  provided  in  Section  VI,  followed  by  a 
final  section  summarizing  some  tentative  resolutions  regarding  effective 
screening  procedures. 

Readers  should  keep  in  mind  that  these  initial  conclusions  are  general 
in  nature  due  to  the  lack  of  comprehensive  information  currently  available. 
This  literature  review  serves  as  a  first-step  in  the  present  ABA  Center  on 
Children  and  the  Law  study  of  effective  screening  practices  used  by  child-  and 
youth-serving  organizations.   The  review  is  intended  to  bring  attention  to  many 
unresolved  issues  and  set  the  framework  for  the  study's  final  objective: 
developing  recommendations  for  a  national  approach  to  the  screening  of  child 
care  and  youth-service  workers.   This  project,  to  be  completed  in  June  1994, 
is  made  possible  with  the  support  of  the  Office  of  Juvenile  Justice  and 
Delinquency  Prevention. 


116 


I.    PROBLEM  STATEMENT 

About  10  million  young  children  spend  a  significant  part  of  each 
weekday  being  cared  for  by  someone  other  than  their  parents  (Children's 
Defense  Fund,  1992).    Our  nation's  changing  demographics  and  the  growing 
number  of  single-parent  and  two-parent  working  households  has  resulted  in  an 
increased  reliance  on  out-of-home  care  and  supervision  ~  a  trend  not  likely  to 
change  anytime  soon.    And  whether  or  not  a  child's  mother  works,  increasing 
numbers  of  3-  and  4-year-olds  are  spending  some  portion  of  their  day  or  week 
in  a  group  program  (Hayes  et  al.,  1990).   In  addition  to  child  care,  there  are 
many  other  service  providers  who  help  meet  the  diverse  needs  of  children 
(e.g.,  education,  medical  care,  mental  health  counseling,  legal  assistance, 
recreation).    While  the  majority  of  employees  and  volunteers  who  work  in  the 
various  child  and  youth  settings  are  dedicated  and  caring  individuals,  too 
often,  an  individual  has  used  his  or  her  position  of  trust  to  victimize  young 
people. 

At  home  or  in  the  confines  of  school,  day  care  or  some  comparable 
setting,  child  abuse  is  widespread.   Reported  incidents  of  all  child  abuse  shot 
up  31  percent  between  1985  and  1990  (Senate  Judiciary  Committee,  November 
1991).   And  while  close  to  2.7  million  cases  of  child  abuse  were  reported  in 
1991,  an  additional  6  million  cases  go  unreported  each  year  (Children's 
Defense  Fund,  1992;  U.S.  General  Accounting  Office,  1992).    Although  it  is 
recognized  that  the  majority  of  these  incidents  happen  in  the  home,  pinpointing 
the  extent  of  child  physical  and  sexual  abuse  which  occurs  in  out-of-home 
settings  is  difficult  and  widely  disputed.   Most  available  figures  depict  child 
sexual  abuse  only,  primarily  in  the  day  care  setting.   Finkelhor  and  Williams 
(1988)  estimate  that  about  5.5  children  per  10,000  enrolled  in  day  care  are  at 
risk  of  sexual  abuse,  a  statistic  frequently  cited.    Other  studies  estimate  that 
reported  rates  of  abuse  in  day  care  centers,  foster  care  homes  and  schools 
range  from  1  to  7  percent  (Baas,  1990;  Daro,  1992;  Margolin,  1991b; 
Rutledge,  1992). 

Despite  the  picture  that  most  studies  paint,  extrafamilial  abuse  is  not 
limited  to  day  care  centers  and  schools:   Over  the  past  10  years,  as  many  as 
800  cases  of  child  sexual  abuse  by  priests  have  either  been  filed  as  lawsuits  or 
settled  quietly  out  of  court  by  Roman  Catholic  dioceses.    And  according  to  one 
author  who  studied  priests'  sexuality  and  celibacy,  "for  each  case  that's  public 
and  legal,  there's  one  that's  silent  and  settled"  (The  Washington  Post, 
December  4,  1992).    The  Washington  Times  reported  that  the  Boy  Scouts  of 
America  becomes  aware  of  about  100  cases  of  child  sexual  abuse  a  year  and 
maintains  more  than  2,000  cases  on  file  at  any  one  time  (May  20-24,  1991, 
special  series).    Similar  statistics  do  not  exist  regarding  physical  abuse. 


117 


A.     Growing  Number  of  Children  in  Out-of-Home  Care 

Adequately  documenting  and  responding  to  extrafamilial  abuse  becomes 
more  problematic  as  one  begins  to  tally  the  multitude  of  settings  in  which 
offenders  seek  access  to  our  nation's  68.5  million  children:    educational 
institutions,  day  care  facilities,  foster  care  homes,  youth  development 
organizations,  social  service  agencies,  medical  care  facilities,  juvenile 
detention,  correctional  and  other  law  enforcement  facilities,  recreational 
centers,  and  religious-based  programs.    Once  we  consider  the  swelling  client 
bases  for  each  respective  service  provider  -  due  in  part  to  the  dissipation  of 
the  "traditional"  family,  the  proliferation  of  economic  pressures  and  social  ills, 
and  the  desire  to  supplement  a  child's  development  with  outside  activities  - 
the  potential  magnitude  of  the  problem  becomes  startling.    Consider,  for 
example,  the  volume  of  children  served  by  just  a  smattering  of  various  child- 
and  youth-serving  workers: 


• 


• 


• 


An  estimated  429,000  children  resided  in  foster  family  homes,  group  homes 
or  institutional  settings  in  1991,  an  increase  of  59  percent  from  the  early 
1980s;  it's  estimated  that  close  to  900,000  children  will  live  in  out-of-home 
care  by  1995  (Children's  Defense  Fund,  1992). 

Public  school  enrollment  rose  from  27  million  in  fall  1985  to  30.4  million  in 
fall  1991,  an  increase  of  close  to  13  percent;  enrollment  is  expected  to  reach 
close  to  32  million  by  1995  (National  Center  for  Education  Statistics,  1992). 

Approximately  750,000  children  and  youth  received  care  from  mental  health 
organizations  in  1988  (National  Institute  of  Mental  Health,  July  1991). 

The  15  organizations  alone  that  comprise  the  National  Collaboration  for  Youth 
serve  approximately  30  million  young  people  each  year  (Carnegie  Council  on 
Adolescent  Development,  1992). 

An  estimated  35  million  children  and  youth  aged  6  to  18  participate  in  youth 
sports  programs  each  year  (Martens,  1986). 


Arriving  at  a  clear-cut  number  of  how  many  children  and  youth  are 
served  in  all  possible  settings  is  elusive.   The  bottom  line  is,  "We  really  don't 
know  beans  about  these  children.    We  don't  have  accurate  counts  ..."  or  the 
solid  data  needed  to  make  appropriate  policy  decisions  and  to  justify  spending 
scarce  resources  (Select  Committee  on  Children,  Youth,  and  Families, 
September  1986).    Efforts  are  hampered  by  the  large  number  of  unlicensed, 
unregulated  day  care  centers  and  family  day  care  homes,  and  the  fact  that 
many  voluntary  and  nonprofit  organizations  do  not  keep  figures  on  how  many 
children  they  serve. 


118 


B.     Speculation  on  the  Number  of  Adults  Who  Come  Into 
Contact  With  Children1 

Given  our  limited  ability  to  ascertain  how  many  children  make  their 
way  in  and  out  of  child-  and  youth-serving  organizations,  we  might  instead 
focus  on  how  many  adults  serve  children  and  youth  in  some  capacity. 
Unfortunately,  definitive  estimates  on  the  number  of  employees  and  volunteers 
in  professions  that  come  into  contact  with  children  is  even  more  cryptic,  in 
particular  among  voluntary  and  religious-based  organizations.   While  there  are 
more  than  17,000  community-based,  youth  development  organizations  and 
some  400  private,  nonprofit  national  youth  organizations,  organizational 
staffing  levels  vary,  as  does  the  use  of  volunteers  (Carnegie  Council  on 
Adolescent  Development,  1992).   The  high  staff  turnover  rate,  estimated  to  be 
40  to  50  percent  annually  among  some  child  care  workers,  compounds  the 
problem  (Hayes  et  al.,  1990;  Wilier  et  al.,  1991). 

To  provide  some  idea  of  the  total  universe  of  child  care  and  youth- 
service  workers,  Table  1  highlights  two  of  the  more  prevalent  groups  of  adults 
who  work  with  children:  child  care  workers  (in  center  and  family  day  care2) 
and  school  staff. 


TABLE  1: 


ADULTS  WHO  COME  INTO  CONTACT  WITH 
CHILDREN  -  IN  CHILD  CARE  &  THE  SCHOOLS 

NUMBER 

(approximate) 

CHILD  CARE3: 

Center-based  early  education  program  staff 

840,000 

Regulated  family  day  care  providers 

165,200 

Unregulated  family  day  care  providers 

694,400  -  2,660,000 

Total  Child  Care  Workers 

1,699,600-3,665,200 

ELEMENTARY  &  SECONDARY  SCHOOLS4: 

Public  &  private  schools  -  admin,  and  instruct'l  staff 

3,600,000 

Public  &  private  schools  -  noninstruct'l/support  staff 

1,425,000 

Public  and  private  schools  -  volunteers 

1,361,400 

Independent  schools  -  all  staff 

109,500-  111,000 

Total  Elementary  and  Secondary  School  Staff 

6,495,900  -  6,497,400 

TOTAL  CHILD  CARE  WORKERS 
AND  SCHOOL  STAFF 

8.195.500-  10.162.600 

119 


C.  Incidence  of  Extrafamilial  Abuse 

Based  on  the  information  outlined  above,  we  have  determined  that 
millions  of  adult  employees  and  volunteers  come  into  contact  with  children  and 
youth  (about  8  to  10  million  in  child  care  and  education  alone).   The  next 
piece  of  the  puzzle  is  how  much  of  all  child  abuse  is  perpetrated  by  those 
individuals  working  in  child  and  youth  settings.    Again,  there  is  no  simple 
answer. 

Estimates  of  child  sexual  abuse  involving  non-familial  perpetrators 
range  from  as  low  as  7  or  8  percent  to  as  high  as  62  percent  of  all  sexual 
abuse  cases;  for  all  types  of  extrafamilial  child  abuse,  the  range  is  1 1  to  30 
percent  (Dube  and  Hebert,  1988;  Gomes-Schwartz  et  al.,  1990;  Margolin  and 
Craft,  1989;  National  Center  on  Child  Abuse  and  Neglect,  1990;  Simon  et  al., 
1992;  U.S.  Department  of  Health  and  Human  Services,  1985).    But  accurate 
prediction  is  next  to  impossible  and  many  authors  claim  significant 
underreporting.    Rindfleisch  and  Rabb  (1984b)  assert  that  only  one  in  five 
complainable  cases  in  residential  facilities  may  have  been  reported  to  child 
protection  agencies  and  the  complaint  rate  may  be  twice  as  high  as 
intrafamilial  rates.    Fuller  (1989)  noted  that  perhaps  less  than  6  percent  of  all 
child  molestations  are  ever  reported.    And  the  New  York  State  Subcommittee 
on  Child  Abuse  (1983)  found  that  "based  on  current  statutory  definitions.  .  . 
more  than  80  percent  of  all  alleged  incidents  of  child  abuse  and  neglect  [in  the 
foster  care  setting]  are  never  reported,"  65  percent  of  which  are  abuse. 

"[W]e  do  a  lot  better  job  of  tracking  our  imports  and  exports,  and  the 
hours  that  we  work,  and  all  sorts  of  economic  data  than  we  do  in  tracking  how 
many  children  are  really  physically  and  sexually  abused  in  the  United  States, 
and  how  many  children  die  in  the  United  States"    (Select  Committee  on 
Children,  Youth  and  Families,  March  1987b).    Part  of  the  problem  is  that 
abuse  may  be  "quite  blatant  and  well  entrenched,  or  it  can  be  quite  subtle  -  so 
subtle,  in  fact,  that  supervisory  and  administrative  people  in  charge  may  not 
know  it's  going  on"  (California  Association  of  Services  for  Children,  1987). 
Even  if  questionable  staff  behavior  is  uncovered,  an  agency  may  struggle  over 
whether  such  incidents  actually  typify  child  abuse.    How  then  does  an 
organization  (or  an  individual  who  suspects  extrafamilial  abuse)  arrive  at  an 
answer?   Are  specific  criteria  used  to  assess  the  situation?   Are  these  criteria 
applied  consistently  and  across-the-board  to  all  staff?   Many  child-  and  youth- 
serving  organizations  are  grappling  with  these  and  other  related  questions. 

D.  Identifying  "Cidld  Abuse":  The  Need  for  a  Uniform  Definition 

Strife  over  exactly  what  constitutes  child  abuse  merely  accentuates  the 
confusion  over  how  many  children  are  abused  in  out-of-home  settings.    No 
standard,  uniform  definition  exists  regarding  extrafamilial  abuse.    Classifying 


120 


acts  of  sexual  abuse  may  be  more  straightforward  than  categorizing  physical 
abuse,  the  latter  of  which  is  thought  to  be  more  prevalent  but  harder  to  define, 
in  part  because  it  is  sometimes  difficult  to  distinguish  from  appropriate 
disciplinary  actions  and  may  differ  according  to  context.    Defining  abuse  is 
thus  often  based  on  subjective  value  judgments.   This  absence  of  operational 
definitions  and  guidelines  for  substantiating  all  types  of  institutional  abuse 
impedes  reporting  and  intervention  in  out-of-home  care  settings. 

Limited  definitions  for  "child  abuse"  originated  from  the  intrafamilial 
setting.   The  Child  Abuse  Prevention  and  Treatment  Act  (P.L.  93-247),  [later 
amended  in  the  Child  Abuse  Prevention  and  Treatment  and  Adoption  Reform 
Act  of  1978  (P.L.  95-266)],  defines  child  abuse  and  neglect  as  "the  physical  or 
mental  injury,  sexual  abuse  or  exploitation,  negligent  treatment  or 
maltreatment  of  a  child  under  the  age  of  18,  or  the  age  specified  by  the  child 
protection  law  of  the  State  in  question,  by  a  person  who  is  responsible  for  the 
child's  welfare  ...  as  determined  in  accordance  with  regulations  prescribed 
by  the  Secretary  [of  HEW]."   But  Daro  (1988)  asserts  that  there  is  wide 
discrepancy  in  the  extent  to  which  individual  states  have  adopted  the  federal 
definition  of  child  abuse:    "[TJhere  is  no  single  child  maltreatment  law  for  the 
United  States  as  a  whole;  instead  there  are  50  different  laws,  each  of  which 
has  its  own  definition  of  maltreatment,  standards  for  reporting  known  cases  of 
maltreatment,  and  its  own  sanctions  against  those  found  guilty  of  such 
offenses."   In  addition,  child  abuse  laws  fall  into  two  distinct  categories  --  civil 
child  protection  laws  designed  according  to  the  needs  of  the  child  and  criminal 
child  abuse  laws  aimed  at  punishing  offenders  -  and  their  respective 
definitions  may  differ. 

While  discord  over  how  to  define  acts  of  child  abuse  perpetrated  by 
employees  and  volunteers  increases  reliance  on  individual  judgments  and 
frustrates  reporting  and  prevention  efforts,  other  fundamental  and  well- 
entrenched  factors  also  help  perpetuate  the  problem.   One  of  these  is  the 
intense  disbelief  that  abuse  could  ever  take  place  within  an  organization's  own 
ranks;  a  knee-jerk  response  triggered  by  an  "it  can  never  happen  to  me" 
mentality.   Two  other  sustaining  factors  are  what  Lanning  refers  to  as  (1) 
"public  naivety,"  or  a  misconception  about  the  offender,  and  (2)  "bureaucratic 
irresponsibility,"  or  an  apprehension  about  confronting  the  problem  (The  News 
Chief,  September  28,  1984). 

E.     Failure  to  Take  Strong  Action  Against  Abuse  en  Out-of- 
Home  Settings 

Historically,  there  has  been  an  unwillingness  to  acknowledge  and 
confront  child  abuse  which  occurs  outside  the  home.   While  public  awareness 
has  increased,  many  child-  and  youth-serving  organizations  still  vehemently 
and  publicly  deny  that  abuse  by  staff  is  a  problem.    "[TJhe  nonviolent  sexual 


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abuse  of  children  is  more  often  dealt  with  as  a  nuisance  offense.    The  bottom 
line  is  that  society  condemns  child  molestation  in  the  abstract,  but  how  it 
responds  to  individual  cases  depends  on  the  particular  circumstances  and  the 
molester's  position  in  the  community"  (Lanning,  1987).    Identification, 
investigation  and  prosecution  of  child  molesters  may  not  be  welcomed  by 
many  communities,  especially  when  the  offender  is  considered  a  pillar  of 
society  (e.g.,  the  individual  committed  to  multiple  worthy  causes)  or  believed 
to  be  of  superior  status  to  the  commoner  (e.g.,  a  priest). 

Once  disbelief  wanes,  the  desire  to  protect  an  organization  or  individual 
worker's  own  position  may  surface,  thereby  minimizing  the  original  problem 
out  of  existence.    As  one  education  attorney  explained,  "Unfortunately.  .  .the 
professional  reputation  of  superintendents  are  at  stake.   They're  not  going  to 
allow  their  reputations  to  be  besmirched  by  rampant  reports  of  violence, 
vandalism  and  sexual  abuse  in  their  own  schools.   That  perhaps  is  a  more 
realistic  problem  than  anything  else  -  the  outright  reluctance  to  acknowledge  a 
problem"  {The  News  Chief,  September  24,  1984).    However,  this  defense 
mechanism  is  slowly  being  worn  away  by  an  energized  victims'  movement  and 
a  growing  number  of  successful  lawsuits,  as  well  as  other  factors. 

Those  organizations  that  have  acknowledged  the  reality  of  abuse  often 
find  themselves  in  a  catch-22  situation:    Although  they  are  legally  required  to 
report  cases,  most  strive  for  minimal  publicity  and  visibility  surrounding  such 
events.   The  result  has  been  organizational  responses  that  are,  at  best,  informal 
in  nature.   The  Archdiocese  of  Chicago  (June  1992b)  has  admitted  that  before 
1983,  very  few  cases  of  child  sexual  abuse  were  reported  to  the  church.   Cases 
that  were  reported  were  handled  internally  and  "lumped  together  with  other 
clinical  problems,  cases  of  financial  misconduct,  and  other  celibacy-related 
problems."    An  added  complication  that  may  prevent  organizations  from  taking 
a  strong  stand  on  curbing  abuse  is  the  lack  of  financial  and  human  resources  to 
deal  with  the  problem.    Rindfleisch  and  Rabb  (1984b)  found  that  almost  half  of 
the  states  perceived  institutional  abuse  to  be  a  low-priority  issue,  in  large  part 
because  they  lacked  the  necessary  resources  to  respond. 

Even  parents  may  choose  to  overlook  or  ignore  abusive  behavior  by 
extrafamilial  caregivers.    Margolin  (1991b)  studied  various  contexts  in  which 
sexually  abusive  providers  come  into  contact  with  children  and  found  that  in 
1 1  percent  of  the  cases,  either  the  child  told  the  parent(s)  that  the  caregiver 
was  touching  them  or  the  parent(s)  knew  that  the  caregiver  had  a  record  of 
child  molestation  or  other  criminal  activity,  yet  did  nothing  to  change  the 
situation. 

The  literature  tells  us  that  millions  of  children  spend  a  substantial 
amount  of  time  in  some  type  of  out-of-home  setting  (be  it  a  child  care  center, 
school,  recreational  center,  medical  care  facility  or  some  other  institution);  at 


8 


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the  same  time,  millions  of  adults  occupy  positions  of  trust  that  put  them  into 
contact  with  these  children  and  youth.   Given  the  volume  of  children  and 
adults  who  pass  through  the  doors  of  various  child-  and  youth-serving 
organizations  and  the  fact  that  out-of-home  child  abuse  does  occur  and  may  be 
even  more  prevalent  than  reported,  a  closer  look  at  extrafamilial  child  abuse 
prevention  is  warranted.    In  doing  so,  clearer  definitions  of  extrafamilial  child 
abuse,  especially  physical  abuse,  and  the  willingness  of  child  and  youth 
organizations  to  concede  that  abuse  may  occur  within  their  own  ranks  are 
needed. 


H.  PREVENTING  EXTRAFAMILIAL  ABUSE  -  NO  EASY 
ANSWERS 

While  consensus  on  the  prevalence  of  out-of-home  abuse  may  be 
lacking,  there  is  no  denying  that  the  problem  exists  and  demands  attention. 
Although  precise  answers  on  how  to  best  respond  are  elusive,  efforts  that 
concentrate  on  prevention  are  most  desirable.    Deciphering  the  prevention 
puzzle  is  not  without  complications  and  requires  the  following  initial  actions: 

►  Determining  all  the  steps  that  can  be  taken  to  prevent  both  initial  and 
repeated  abuse  by  child  care  and  youth-service  workers; 

►  Discerning  which  responses  are  most  effective  in  identifying  potentially 
abusive  employees  and  volunteers; 

►  Weighing  the  advantages  and  disadvantages  of  each  strategy;  and 

►  Assessing  the  feasibility  of  each  approach,  in  light  of  administrative, 
fiscal,  technological  and  political  constraints. 

Obviously  the  most  appealing  strategy  for  any  child-  and  youth-serving 
agency  would  be  to  have  in  hand  a  clear  exhaustive  checklist  of  traits  proven 
to  characterize  any  and  all  child  abusers.    Screening  potential  employees  and 
applicants  against  such  a  list  would  be  quick,  simple,  inexpensive  and 
guaranteed.    But  the  reality  is  that  a  guaranteed  method  does  not  exist  and  is 
not  likely  to  be  developed  anytime  soon.    Until  the  fervent  search  yields  a 
successful  formula  for  identifying  potentially  abusive  employees/volunteers, 
child-  and  youth-serving  organizations  must  be  resourceful  in  their  hiring  and 
screening  efforts  and  consider  all  available  options. 

A.  Difficulty  in  Profiling  Child  Abusers 

Growing  knowledge  and  awareness  of  extrafamilial  child  abuse, 
coupled  with  extensive  media  coverage  of  several  exceptional  cases,  has 
resulted  in  a  flurry  of  public  policy  and  legislative  efforts  to  protect  children 
from  such  offenders.    Of  the  many  responses  (e.g.,  education,  strengthening  of 


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reporting  laws,  tougher  criminal  penalties),  the  area  least  studied  and 
understood  is  how  to  identify  adults  who  may  potentially  abuse  children. 
Despite  the  dearth  of  tangible  information  in  this  area,  opinions  are  abundant. 
All  opinions,  however,  lead  to  the  same  conclusion:   There  is  no  discernible 
profile  of  a  child  abuser  and  no  system  will  predict  with  absolute  certainty 
whether  an  employee  or  volunteer  is  going  to  sexually  or  physically  abuse  a 
child. 

Margolin  and  Craft  (1989)  concluded  that  "despite  literally  hundreds  of 
studies  devoted  to  delineating  the  psychological  make-up  of  child  sexual 
abusers,  there  continue  to  be  few  reliable  ways  by  which  these  characteristics 
can  be  diagnosed.  ..."   As  one  former  Scoutmaster  convicted  of  molesting 
boys  in  his  troop  summed  up:    "There's  no  way  for  sure  you  can  know  if  you 
have  somebody  in  your  organization  who's  gonna  do  what  I  did"  (Washington 
rimes,  May  20-24,  1991,  special  series). 

One  of  the  most  significant  problems  is  that  child  abusers  may  reside 
anywhere  within  an  organization:  in  direct  service,  management  or  agency 
support  roles.    Offenders  run  the  employee/ volunteer  gamut  and  include  day 
care  center  directors,  school  administrators,  experienced  and  trusted  teachers 
and  aides,  coaches,  doctors  and  dentists,  priests  and  other  religious  personnel, 
janitors,  bus  drivers,  security  personnel  and  even  relatives  of  child  care 
providers.    Finkelhor  and  Williams  (1988)  found  that  58  percent  of  reported 
sexual  abuse  cases  in  day  care  were  committed  by  a  person  who  was  not  a 
part  of  the  professional  day  care  staff;  perpetrators  included  janitors,  bus 
drivers  and  some  outsiders  with  no  role  in  the  facility  at  all.    A  quarter  of  the 
cases  involved  non-employee  husbands  and  sons  of  the  day  care  directors  and 
teachers.    A  review  of  child  sexual  abuse  cases  within  Big  Brothers/Big  Sisters 
of  America  revealed  that  10  percent  involved  professional  staff,  including 
executive  directors  and  board  members  (Wolff,  1986).    And  of  the  43,000 
active  priests  in  the  United  States,  it's  estimated  that  6  percent  have 
pedophiliac  tendencies  (Washington  Post,  November  15,  1992). 

While  extrafamilial  abuse  can  be  perpetrated  by  males  or  females,  men 
are  more  often  identified  as  the  perpetrator.    Finkelhor  and  Williams  (1988) 
found  that  even  though  women  made  up  40  percent  of  the  abusers  in  their  day 
care  sample,  men  were  still  responsible  for  the  majority  of  abuse  while 
accounting  for  only  an  estimated  5  percent  of  the  staff.   Other  studies  have 
found  that  males  commit  between  42  and  95  percent  of  the  abuse  (Fuller, 
1989;  Margolin,  1991a;  Margolin  and  Craft,  1989). 

Adolescents  as  an  offender  subgroup  are  receiving  increased  attention, 
in  large  part  because  of  the  prevalence  and  often  more  violent  nature  of  their 
abuse.  Many  authors  also  argue  that  adolescence  is  the  common  age  of  onset 
for  child  sexual  abuse.5   Studies  have  shown  that  adolescents  perpetrate 


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between  25  and  47  percent  of  physical  abuse  and  from  14  to  83  percent  of 
sexual  abuse  (Dube  and  Hebert,  1988;  Finkelhor  and  Williams,  1988;  Gomes- 
Schwartz  et  al.,  1990;  Margolin,  1991a,  Margolin  and  Craft,  1990).    And 
according  to  the  Statistical  Abstract  of  the  U.S.:  1992,  of  the  over  1.75  million 
arrests  of  children  under  18  in  1990,  15  percent  were  for  violent  offenses, 
over  half  (8  percent)  of  which  were  for  sex  offenses  or  offenses  against 
family/children. 

Groth  and  his  colleagues  (1982)  explain  that  "all  too  frequently,  sexual 
offenses  by  juveniles  are  dismissed  as  merely  adolescent  sexual  curiosity  or 
experimentation.  Since  such  offenses  go  unrecognized  by  the  criminal  justice 
and  mental  health  systems,  they  are  not  addressed.  No  intervention  occurs 
until  the  offender  is  an  adult;  by  then,  many  sexual  assaults  and  victimizations 
may  have  occurred  which  might  otherwise  have  been  prevented."    As  depicted 
in  Figure  A  on  the  next  page,  40  percent  of  the  165  juvenile  sex  felons 
committed  to  Washington  State's  Division  of  Juvenile  Rehabilitation  in  1991 
had  a  prior  criminal  history,  12  percent  of  which  were  for  felony  sex  offenses 
(Washington  State  Institute  for  Public  Policy,  1992).   The  recognition  that 
abusive  behavior  may  begin  early  in  an  offender's  life  and  persist  for  the 
majority  of  his/her  years  is  particularly  distressing. 

B.     The  REcrorvisnc  Nature  of  Child  Abuse 

Whether  the  offender  is  male  or  female,  young  or  old,  child  abuse  is 
rarely  a  one-time  event  and  often  involves  multiple  victims.    "Given  that  many 
sex  offenders  have  established  a  repetitive  pattern  of  deviant  behavior  prior  to 
an  arrest.  .  .  we  can  expect  many  sex  offenders  to  repeatedly  commit  sex 
offenses"  (Furby  et  al.,  1989).    In  a  1986  National  Institute  of  Mental  Health 
study  of  over  400  child  molesters,  offenders  admitted  to  committing  over 
67,000  instances  of  child  sexual  abuse,  an  average  of  117  victims  per  abuser; 
those  targeting  young  boys  averaged  281  (Senate  Judiciary  Committee, 
November  1991).   Other  studies  place  the  average  number  of  victims  at 
anywhere  from  7  to  100  (Conte  et  al..,  1989;  Gilgun  and  Connor,  1989; 
Rogers  and  James,  1991). 

Even  those  offenders  who  are  discovered  and  convicted  often  return  to 
their  old  ways.    A  recidivism  study  by  Rice  and  colleagues  (1991)  found  that 
close  to  one-third  of  extrafamilial  sexual  offenders  were  convicted  of  a  new 
sex  offense;  43  percent  committed  a  violent  or  sexual  offense.   In  a 
compilation  of  sex  offender  recidivism  reports,  the  Washington  State  Institute 
for  Public  Policy  (1992)  revealed  that  10  to  29  percent  of  child  molesters  who 
abused  girls  and  13  to  40  percent  of  child  molesters  who  abused  boys  repeated 
the  offense.   The  Institute  also  found  that  of  those  adults  convicted  of  felony 
sex  crimes  in  Washington  (fiscal  year  1992),  one-third  had  a  prior  criminal 
history;  44  percent  of  which  were  for  felony  sex  offenses  (See  Figure  A). 


11 


125 


Figure  A:   Percentage  of  Convicted  Adult  and  Juvenile  Sex  Offenders  in 
Washington  State  Having  a  Prior  Criminal  History;  Percentage  of  Each  with 

Prior  Felony  Sex  Offense 


Prior    Criminal    History  P>-|or    Fa  lony    Sex   Offense 

18888  ftauits    ^^  Juveniie6 


Source:    Washington  State  Institute  for  Public  Policy,  1992 

In  a  separate  California  study,  the  results  of  a  15-year  follow-up  of 
1,362  sex  offenders  first  arrested  in  1973  showed  that  almost  half  were 
rearrested  for  some  offense,  20  percent  for  a  subsequent  sex  offense  (Lewis, 
1988).    Reported  recidivism  rates,  according  to  Furby  and  her  colleagues 
(1989),  have  ranged  from  0  to  50  percent,  a  range  "exceeded  only  by  the  array 
of  statutes  and  policies  applied  to  sex  offenders. " 

Two  cases  illustrate  the  seriousness  of  the  multiple  victim  problem:    In 
Washington  State,  a  man  was  arrested  in  April  1991  for  molesting  nearly  200 
children  in  Washington,  Oregon,  Montana,  Idaho  and  California.   His  first 
conviction  dated  back  to  1969.    In  another  case,  a  school  psychologist  was 
convicted  in  1985  of  child  molestation  in  Maryland  and  after  serving  time 
there  later  moved  to  Virginia  where  he  was  again  hired  as  a  school 
psychologist.    Six  months  later  he  was  arrested  for  molesting  15  elementary 
school  students  (Congressional  Record,  June  27,  1991).    Advocates  of  criminal 
record  checks  are  quick  to  cite  cases  such  as  these  to  support  the  need  for  such 
background  checks. 


12 


on     £/~\0    r\ 


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The  overall  message  is  clear:   child  abusers  cover  a  wide  spectrum  and 
the  "severity,  number  and  type  of  victims,  and  permanence  of  the  features 
vary  from  one  child  molester  to  the  next  and  also  vary  with  the  passage  of 
time  in  the  same  abuser"  (Fuller,  1989).   When  screening  for  a  history  of  or 
potential  for  child  abuse,  organizations  need  to  understand  that  offender 
characteristics  differ  not  only  between  physical  and  sexual  child  abusers,  but 
also  within  subgroups  of  sexual  child  abusers  (e.g.,  situational  and 
preferential).    Given  the  complexity  and  diversity  of  the  offender  population, 
can  any  one  type  of  screening  be  effective  in  identifying  a  potential  offender? 
The  answer,  to  date,  is  unclear. 

C.     Limitations  of  Attempting  to  Profile  Offenders 

Due  to  the  complex  nature  of  child  abuse  and  the  general 
unpredictability  of  human  nature,  any  attempts  to  assess  the  potential  for 
abusive  behavior  should  be  broached  with  extreme  caution.   Tables  2  and  3  list 
a  series  of  offender  and  situational  characteristics  thought  to  be  linked  with 
abuse,  in  particular  sexual  abuse.6  These  indicators  are  not  gospel  and  should 
not  be  used  impetuously  and  indiscriminately  to  label  someone  as  a  child 
abuser.    Concerned  readers  should  withstand  the  temptation  to  cull  any  one 
random  characteristic,  isolated  from  the  slew  of  other  possible  contributing 
factors,  as  evidence  that  an  applicant  will  abuse  children.    Even  in 
combination,  accurate  prediction  based  on  these  attributes  is  just  not  possible. 
The  appeal  of  basing  an  employment  or  volunteer  placement  decision  solely  on 
these  variables  should  be  resisted  for  several  reasons: 

1)  all  people  will  not  exhibit  all  traits; 

2)  these  indicators  do  not  quantify  the  degree  of  risk  (high,  medium,  low) 
for  abuse  and  under  what  conditions  it  may  occur; 

3)  factors  associated  with  initial  abuse  are  not  necessarily  the  same  factors 
connected  to  repeated  or  future  abuse; 

4)  abusive  behavior  often  involves  a  unique  interaction  between  victim, 
situational  and  offender  characteristics,  which  may  differ  widely  among 
individuals;  and 

5)  no  documented  evidence  of  predictive  validity  exists. 


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TABLE  2:      Possible  Offender  Characteristics 
Traits  and  Behavior  Patterns 


Predisposing 


frequent  and  unexpected  moves 

low  self-esteem  and  ego-strength 

inappropriate  expectations  of  child  behavior 

life  stress 

depression 

unable  to  form  attachments 

alcohol  and  drug  use 

dysfunctional  home  situation 

history  of  psychiatric  problems 

or  mental  illness 
skilled  at  identifying  vulnerable  victims  and 

manipulating  children 
abused/neglected  as  a  child 
feelings  of  inadequacy  and  helplessness 
poor  impulse  control  and  inability 
to  handle  frustration 
limited  social  contacts  as  teenager 
premature  separation  from  the  military 
unstable  work  history,  min.  responsibility 
distorted  beliefs  about  sex  and  children 
prior  arrests  (for  all  kinds  of  offenses) 
shows  sexually  explicit  material  to  children 
places  premium  on  doing  one-to-one  activities 
with  children 


over  25,  single,  never  married 
if  married,  spouse  inadequate,  doesn't 
meet  needs 

excessive  interest/overinvested  in  children 
associates  and  circle  of  friends  are  young 
limited  peer  relationships 
social  isolation 
age  and  gender  preference 
refers  to  children  as  "clean",  "pure," 
"innocent" 

inadequate  understanding  of 
children's  developmental  phases 
identifies  w/children  better  than  w/adults 
legitimate  access  to  children  (i.e, 
occupation) 

activities  with  children  often  exclude 
other  adults 

seduces  with  attention,  affection  and  gifts 
hobbies  and  interests  appealing  to 
children 

youth-oriented  decorations  in  home 
frequent  photographing  of  children 
prefers  low  visibility  activities 
failure  to  set  limits  with  children 


TABLE  3:      Possible  Situational/Organizational  Risk  Factors 


institutional  constraints  and  lack 

of  cooperation  among  various  departments 
conflicting  interests  of  staff  and  clients 
limited  resources  and  staff  support  systems 
high  rate  of  staff  turnover 
perceived  organizational  inflexibility 
staff/child  ratio 
number  of  children  in  care 
(is  it  at  full  capacity,  over/under  limit) 
limited  staff  training  and/or  knowledge 

and  understanding  of  parenting  skills 
lack  of  well-defined  and  articulated 

philosophy  on  caretaking/child  management 
lack  of  written  guidelines/safeguards  on 

disciplinary  procedures  and  policies 
organizational  stresses  (layoffs,  budget  cuts) 
compliance  with  laws,  statutes  and  regulations 
minimal  amount  of  informal  peer  observation 


lack  of  clear/distinct  line  of  command  and 

central,  decision-making  authority 
lack  of  open  communication  and 

information  systems 

lack  of  positive,  reinforcing  environment 
perpetrator's  access  to  child 
presence  of  non-related  caretaker 
lack  of  opportunities/mechanisms  for  staff 

to  seek  supervisory  assistance 

lack  of  facility  director's  involvement 

in  all  aspects  of  agency  operations 
agency's  practice  of  matching  children 

to  caretaker/volunteer 
community  visibility  and  accessibility  of 

setting 

lack  of  adequate  health  care/medical  tint 

degree  to  which  certain  programs/classes 

are  separated  and  isolated 


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As  discussed,  the  presence  of  the  above  characteristics  is  not 
completely  indicative  that  abuse  will  occur.    However,  such  attributes  can  be 
useful  in  developing  diagnostic  tools  for  evaluation  agencies  and  set  the  stage 
for  future  prediction  research.    In  addition,  certain  traits  may  provide  triggers 
for  further  "investigation,"  or  in  some  cases,  may  be  grounds  forjudging  an 
applicant  as  unsuitable  to  work  with  children  (e.g.,  "shows  sexually  explicit 
material  to  children"). 

Given  our  understanding  about  the  dynamics  of  extrafamilial  abuse  and 
the  fact  that  to  date,  efforts  to  profile  and  identify  offenders  have  been  largely 
unsuccessful,  what  other  lines  of  defense  are  available  to  child-  and  youth- 
serving  organizations  to  prevent  abuse  by  employees  and  volunteers?   Some 
concerned  individuals  feel  that  the  time  is  ripe  to  step  up  legislative  and 
regulatory  efforts  to  build  a  more  solid  wall  in  preventing  access  to  children. 
Attempts  to  create  such  a  strong  legal  foundation  are  not  without  criticism. 


ffl.   NATIONAL  INITIATIVES 

The  desire  to  more  effectively  prevent  out-of-home  child  abuse, 
together  with  growing  fear  about  agency  liability,  has  accelerated  the  quest  for 
screening  methods  to  systematically  identify  child  and  youth  service  workers 
who  are  unsuitable  to  work  with  or  around  children.    In  the  last  decade,  this 
quest  has  settled  in  the  legislative  arena.    Since  the  early  1980s,  the  trend 
toward  criminal  record  checks  for  employment  and  licensing  has  intensified, 
targeting  not  only  the  operators  and  employees  of  child  care  facilities,  but  also 
teachers  and  youth  development/recreation  workers.    Federal  legislative 
success,  however,  has  been  limited  in  scope  and  hampered  by  lack  of  funding. 

A.     Early  Efforts 

In  December  1982,  the  President's  Task  Force  on  Victims  of  Crime 
recommended  making  sexual  assault,  child  molestation  and  pornography  arrest 
records  available  to  those  whose  employees  come  into  regular  contact  with 
children.    In  early  1983,  Sen.  Arlen  Specter  (R-Penn.)  failed  to  gain  the 
necessary  backing  for  legislation  to  prohibit  employment  of  any  individual  in 
juvenile  detention,  care,  correction  or  treatment  facilities  who  had  not 
undergone  a  nationwide  FBI  check.    Later  that  year,  Sen.  Charles  Grassley  (R- 
Iowa)  introduced  legislation  addressing  employment  of  those  with  arrest/ 
conviction  records  for  child  sexual  assault,  child  molestation  or  child 
pornography  and  proposed  creating  a  centralized  registry  of  all  state  and 
federal  arrests  and  convictions  for  these  offenses,  to  be  termed  the  "Child  Care 
Protection  and  Employees  Responsibility  File."   Concerns  about  increased 
administrative  and  bureaucratic  problems  and  the  potential  for  abuse  of  a 
special  federal  "sex  crimes"  file  prevented  passage  of  the  legislation 


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(Davidson,  1985).    However,  the  idea  of  creating  a  national  file  of  criminal 
child  abuse-related  records  would  resurface. 

The  "Children's  Defense  Act  of  1984"  addressed  the  cost  of  criminal 
record  checks;  timeliness  of  the  states'  reporting  of  conviction  data  to  the  FBI; 
the  FBI's  response  time  to  state  record  check  requests;  and  the  security  and 
confidentiality  of  criminal  history  records  at  the  state  level.    This  legislation 
also  died  in  Congress.    But  Rep.  George  Miller  (D-Calif.)  and  Sen.  Dennis 
DeConcini  (D-Ariz.)  thereafter  introduced  legislation,  which  passed  as  the 
DeConcini-Specter  Amendment  included  in  the  1985  Fiscal  Year  Continuing 
Appropriations  Act,  P.L.  98-473.   This  amendment  tied  Title  XX  funding  to 
state  laws  mandating  nationwide  FBI  criminal  record  screening  of  employees 
in  "any  facility  having  primary  custody  of  children  for  20  hours  or  more  per 
week"  as  well  as  all  juvenile  detention,  correctional  and  treatment  facilities. 
Congress  gave  the  states  less  than  a  year  to  draft,  enact  and  have  in  effect  the 
criminal  background  legislation,  and  also  directed  the  Department  of  Health 
and  Human  Services  (DHHS)  to  develop  a  Model  Child  Care  Standards  Act  to 
help  guide  implementation. 

The  effect  of  the  DeConcini-Specter  Amendment  has  not  been 
extensive.    Not  all  states  enacted  legislation  for  criminal  background  screening 
laws,  and  the  program  was  not  funded  beyond  fiscal  year  1985  (Senate 
Committee  on  the  Judiciary,  November  1991).    Moreover,  the  DeConcini- 
Specter  Amendment  fell  short  by  failing  to  address  several  issues,  including: 
whether  the  large  number  of  unregulated  child  care  providers  should  be  subject 
to  screening  requirements  to  the  same  extent  as  those  currently  licensed;  how 
the  criminal  history  information  should  be  used  in  decision-making;  to  what 
extent  the  confidentiality  of  the  criminal  history  information  must  be 
maintained;  what  steps  should  be  taken  to  increase  completeness  of  state  and 
FBI  criminal  record  repository  data;  who  should  bear  the  financial  burden 
associated  with  criminal  record  checks;  what  steps  should  be  taken  to  minimize 
delays  in  processing  the  requests;  what  consequences  should  flow  from  failure 
to  seek  or  act  properly  on  record  information;  and  what  the  role  o/  the  federal 
government  should  be  in  implementing  and  monitoring  screening.  (Davidson, 
1985). 

The  Model  Child  Care  Standards  Act,  which  DHHS  issued  in  1985  to 
help  assist  in  the  implementation  of  the  DeConcini-Specter  Amendment,  was 
not  particularly  helpful  in  settling  these  issues.    Although  it  discussed  many  of 
the  issues  in  using  criminal  history  information  to  screen  child  care  workers 
and  was  useful  as  a  general  guide  to  employment  history  and  background 
check  regulations,  it  contained  few  specific  recommendations  on  these  matters. 

Of  greater  assistance  in  resolving  these  issues  was  a  1986  Model  Statute 
entitled    "Employer  Access  to  Sex  Offense  Criminal  History  Records."   The 


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Model  Statute,  developed  by  the  U.S.  Department  of  Justice  in  collaboration 
with  the  ABA's  Criminal  Justice  Section,  was  a  commendable  effort  in 
drafting  screening  legislation.    It  recommended  that  all  convictions,  pending 
arrests  and  two  or  more  arrests  not  resulting  in  conviction  be  released  to 
organizations  whose  employees  regularly  render  services  to  children.   This 
information  was  intended  to  provide  employers  with  a  tool  to  make  more 
informed  hiring  decisions.    Employers  were  not  compelled  to  conduct  criminal 
background  checks  on  all  employees  because,  as  stated  in  the  Model  Statute, 
such  a  requirement  "may  result  in  unwarranted  administrative  and  financial 
hardship  for  both  the  employer  and  the  disseminating  agency."    Nonetheless, 
to  encourage  criminal  record  checks,  the  Model  Statute  provided  for  employer 
liability  to  injured  children  when  available  sex  offense  information  was  not 
obtained  and  the  subject  employee  injured  a  child.   Thus,  an  employer  seeking 
to  minimize  the  risk  of  liability  would  conduct  criminal  background  checks. 
Also  of  note  is  the  Model  Statute's  authorization  of  reciprocal  agreements  to 
exchange  information  with  other  states  and  the  federal  government,  thereby 
providing  a  framework  for  the  development  of  a  national  sex  offense  criminal 
history  network.    However,  the  Model  Statute  was  simply  a  guide  for  state 
action.   Moreover,  it  only  addressed  access  to  sex  offenses,  and  not  other 
relevant  criminal  history  information. 

B.     More  Recent  Federal  Initiatives 

The  last  several  years  have  brought  a  flurry  of  Congressional  proposals 
regarding  child  abuser  registration  and  screening  -  from  registering  convicted 
offenders'  addresses  for  10  years  after  their  release  from  prison,  parole  or 
supervision  to  permitting  child  care  facilities  to  run  background  checks  by 
using  the  "instant  check"  system  proposed  for  firearm  purchasers. 

Only  one  of  these  proposals  was  enacted.    In  1990,  Congress  passed 
Public  Law  101-647,  the  Crime  Control  Act  of  1990,  which  included  Subtitle 
E:  Child  Care  Worker  Employee  Background  Checks.    Subtitle  E  mandated 
state  and  federal  (FBI)  fingerprint  checks  of  all  existing  and  prospective 
employees  in  federally-operated  or  federally-contracted  child  care  agencies.    In 
addition,  Subtitle  E  encouraged  checks  on  volunteers,  adult  household 
members  in  places  where  child  care  or  foster  care  services  are  being  provided, 
and  others  who  may  have  contact  with  children.   To  date,  no  formal 
documentation  exists  evaluating  the  implementation  and  effectiveness  of 
Subtitle  E  in  screening  out  potential  offenders.7 

In  November  1991,  the  Senate  Judiciary  Committee  held  a  hearing  to 
discuss  the  National  Child  Protection  Act  of  1991.   The  proposed  legislation, 
popularly  termed  the  "Oprah  Bill"  after  its  major  proponent,  talk  show  host 
Oprah  Winfrey,  included  the  finding  that  "[fjhere  is  no  reliable,  centralized 
national  source  through  which  child  care  organizations,  including  voluntary 


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organizations,  may  obtain  the  benefit  of  a  nationwide  criminal  background 
check  on  persons  who  provide  or  seek  to  provide  child  care"  (Senate 
Committee  on  the  Judiciary,  November  1991). 

The  proposed  act  sought  to  establish  a  national  background  check 
procedure  for  child  care  providers;  encourage  reporting  of  all  state  and  federal 
child  abuse  crimes  to  the  FBI's  National  Crime  Information  Center;  and 
establish  minimum  guidelines  for  states  to  follow  in  conducting  background 
checks.   The  proposed  bill  also  required  states,  within  three  years  of 
enactment,  to  achieve  at  least  80  percent  of  final  dispositions  "in  computerized 
criminal  history  files  for  all  identifiable  child  abuse  cases"  in  which  there  had 
been  action  within  the  last  five  years.    Proponents  of  the  legislation  argued  that 
creating  a  comprehensive  national  background  screening  system  would  prevent 
"literally  thousands  of  dangerous  criminals"  from  obtaining  jobs  that  give  them 
access  to  children  (ibid).    Although  this  effort  was  not  controversial,  it  died  in 
late  1992  as  part  of  a  larger  crime  bill.   Its  advocates  have  continued  the  fight 
by  reintroducing  the  legislation  in  early  1993.   Sen.  Joseph  Biden  (D-Del.)  and 
Rep.  Patricia  Schroeder  (D-Colo.)  have  each  introduced  criminal  background 
check  legislation  (S.8  and  H.R.  1237,  respectively)  similar  to  the  proposed 
1991  bill. 

Congressional  leaders  and  policymakers  at  the  national  level  are  not  the 
only  ones  in  pursuit  of  a  structure  to  support  criminal  background  screening. 
Various  state  regulatory  and  licensing  agencies,  too,  have  strengthened  certain 
employment  and  licensing  requirements  to  help  prevent  the  abuse  of  children 
by  child  care  and  youth-service  workers.    In  addition  to  criminal  background 
screening  through  the  FBI  and  state  criminal  history  repositories,  state-level 
activities  have  delved  into  the  use  of  state  child  abuse  and  sex  offender 
registries.  (Please  refer  to  Section  VI  for  a  discussion  of  these  registries.) 


IV.    STATE  SCREENING  LAWS: 
A  MYRIAD  OF  APPROACHES 

State  screening  laws  generally  fall  into  two  categories:    (1)  licensing 
standards  requiring  or  permitting  a  licensing  agency  or  licensed  facility  to  use 
certain  screening  methods,  including  criminal  background  checks,  in  issuing 
licenses  or  hiring  employees/  volunteers  who  work  with  children;  and  (2) 
provisions  permitting  organizations  access,  through  an  authorized  state  agency, 
to  child  abuse  or  state  and/or  federal  criminal  records  for  screening  purposes. 
Within  each  of  these  categories,  there  is  wide  variety  in  scope  and  application. 
Further,  not  all  state  legislation  authorizes  child-serving  and  volunteer 
organizations  access  to  records  in  screening  workers.    Thus,  the  ability  to 
conduct  criminal  background  checks  before  hiring  a  child  care  or  youth-service 
worker  may  be  limited  by  the  reach  of  the  licensing  statutes. 


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A.     Licensing 

All  states  have  some  legislation  regulating  day  care  facilities  and  in 
most  states,  this  includes  a  requirement  to  screen  at  least  some  of  the  workers 
using  criminal  records.    However,  as  the  literature  reveals,  the  types  of 
facilities  covered,  the  extent  to  which  screening  of  workers  is  required,  and 
the  scope  of  the  screening,  varies  considerably  (Bulkley  and  Jackson,  1989). 

State  licensing  and  registration  provisions  generally  cover  specific 
categories  of  facilities,  which  may  or  may  not  encompass  the  myriad  of 
entities  that  provide  care  for  children.    Typically,  states  may  require  criminal 
history  record  screening  in  one  or  more  of  the  following  settings:  (1)  child 
care  centers,  (2)  group  homes,  (3)  child-placing  agencies,  (4)  child-caring 
institutions  and  residential  settings,  (5)  independent  foster  homes,  (6)  family 
day  care  homes,  (7)  educational  facilities,  (8)  sources  of  transportation  to 
educational  facilities,  and  (9)  adoptive  homes  (Davidson  et  al.,  1991). 

Adams  (1990)  provides  interesting  statistics  documenting  some  of  the 
variety  in  types  of  child  care  facilities  regulated: 

►  Although  one-third  of  all  child  care  centers  are  operated  by  religious 
institutions,  14  states  (28  percent)  fully  or  partially  exempt  such  child 
care  programs. 

►  A  substantial  majority  of  the  states  (59  percent)  fully  or  partially 
exempt  those  programs  operating  in  public  schools. 

►  More  than  half  of  the  states  (55  percent)  exempt  all  youth  programs 
operating  in  adult  recreational  facilities  from  all  licensing  requirements. 

There  is  further  variety  in  screening  based  on  the  category  of  worker. 
With  respect  to  criminal  record  screening  requirements,  some  states  exclude 
people  who  have  resided  in  the  geographic  area  for  a  substantial  period  of 
time.    Some  states  also  exempt  from  the  screening  process  people  who  do  not 
have  contact  with  children  or  who  are  always  supervised  by  someone  while  in 
the  presence  of  children  (such  as  limited  time  volunteers).    In  addition, 
screening  requirements  may  or  may  not  apply  to  parent-volunteers  (Davidson 
etal.,  1991). 

Compounding  the  variety  in  terms  of  facilities  and  persons  covered, 
state  regulations  of  child  care  and  youth-serving  personnel  vary  with  respect  to 
the  screening  methods  used.    Required  methods  may  include  employment 
history  and  reference  checks,  local  and  statewide  criminal  record  checks  (by 
name  or  fingerprints),  FBI  criminal  record  checks  (requiring  fingerprints  and 
generally  done  through  a  state  agency),  child  abuse  registry  checks,  and  sex 


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offender  registry  checks.    (Please  refer  to  Section  V  for  a  detailed  discussion 
of  criminal  record  checks.) 

Several  states  having  fairly  comprehensive  screening  legislation  are 
discussed  in  the  literature.    Florida,  for  example,  enacted  legislation  in  1985 
requiring  screening  of  employees,  operators,  volunteers  and  job  applicants  of 
child  care,  residential  facilities,  mental  health,  alcohol  and  drug  abuse 
programs,  and  certain  other  programs.   The  screening  methods  mandated  in 
Florida  include  state  and  federal  criminal  background  checks  (by  fingerprint) 
and  employment  history  checks.8   New  York  also  has  broad  screening 
legislation.    New  York  City's  screening  regulations,  implemented  in  1984, 
require  checks  with  past  employer  references,  criminal  background  checks  (by 
fingerprint),  and  checks  with  the  state  list  of  New  Yorkers  indicated  for  child 
abuse  and  neglect  by  the  Department  of  Social  Services  (Rollins,  1985). 

B.     Access  to  Criminal  History  Information 

Access  to  information  contained  in  criminal  files  is  generally  restricted. 
In  recent  years,  however,  there  has  been  a  trend  towards  making  criminal 
history  information  more  available  to  noncriminal  justice  agencies,  private 
individuals  and  organizations,  and  the  public.   States  have  passed  laws 
authorizing  criminal  record  access  to  youth-serving  and  volunteer  organizations 
that  provide  care,  treatment  or  services  to  children.    As  Thomas  Wilson  of 
SEARCH  Group,  Inc.  pointed  out  in  1988,  "[T]he  movement  towards  open 
records  is  happening  in  a  de  facto  manner:  through  piecemeal  legislation, 
through  forces  for  change  by  interest  groups  going  to  their  legislatures,  by  the 
challenges  brought  forth  by  groups  such  as  the  Reporters  Committee  for 
Freedom  of  the  Press,  by  changes  in  FBI  policy  and  by  increasing  access  to 
criminal  history  record  information  by  federal  noncriminal  justice  agencies" 
(Bureau  of  Justice  Statistics,  November  1988b).    In  addition,  some  states  have 
enacted  public  records  laws  that,  to  a  greater  or  lesser  extent,  make  criminal 
history  records  available  to  private  entities  (Bureau  of  Justice  Statistics, 
November  1988a).    But  despite  tne  trend,  the  Bureau  of  Justice  Statistics  (BJS) 
maintains  that  criminal  justice  officials  still  enjoy  some  discretion  regarding 
noncriminal  justice  use  of  records:  "[I]n  many  states  the  actual  extent  of 
noncriminal  justice  access  to  records  held  at  the  repository  is  more  limited 
than  it  would  appear  from  a  reading  of  the  state  statute"  (ibid). 

Specific  Access  Legislation 

Variety  continues  to  be  the  watchword  with  respect  to  legislation 
granting  private  individuals  and  organizations  access  to  criminal  records  for 
employment  screening  purposes.    As  the  ABA  Center  on  Children  and  the  Law 
found,  some  states  permit  access  regarding  persons  applying  or  volunteering 
for  positions  in  which  they  will  have  supervisory  or  disciplinary  power  over  a 


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minor;  others  allow  access  to  youth-service  agencies  or  certain  entities 
providing  recreational,  social,  educational  or  child  safety  services  to  children 
(Davidson  et  al.,  1991).    Robert  Belair,  a  Washington  lawyer  and  general 
counsel  for  SEARCH  Group,  has  observed  some  general  patterns  in  state 
legislation  granting  noncriminal  justice  entities  access  to  criminal  history 
records,  including  the  "clear  distinction  between  conviction  information  and 
nonconviction  information:   state  agencies  demonstrate  some  willingness  to 
release  the  former  and  almost  no  willingness  to  release  the  latter"  (BJS, 
November  1988a). 

In  pe.mitting  access  to  criminal  history  information  under  these 
circumstances,  a  few  states  have  set  forth  eligibility  requirements  that  a  private 
entity  must  meet  in  order  to  be  able  to  obtain  the  information.    For  example, 
Arizona,  Illinois,  Iowa  and  Kentucky  have  established  an  authorized  body  to 
review  an  entity's  request  and  decide  whether  its  activities  fall  within 
statutorily  authorized  boundaries.    Other  states  require  volunteer  organizations 
seeking  criminal  record  access  to  enter  into  agreements  setting  forth  the  access 
terms,  including  indemnification,  information  security  and  confidentiality.   For 
example,  Kansas  has  "non-disclosure  agreements"  and  Illinois  has  "private 
organization  volunteer  agreements"  (Davidson  et  al.,  1991). 

Public  Records  Laws 

During  the  past  15  years,  states  began  enacting,  (and  others  recently 
began  considering)  versions  of  public  records  laws.    In  some  states,  these  laws 
are  quite  far-reaching.    Florida,  for  example,  permits  anyone  to  request  the 
state  criminal  record  of  any  other  person  upon  payment  of  a  fee  and  the 
provision  of  certain  information  regarding  the  subject  (name,  sex,  race,  date  of 
birth,  social  security  number  and  address).    Other  states  are  more  restrictive 
and  may  expressly  require  a  subject's  consent  or  effectively  do  so  by  requiring 
certain  information,  such  as  fingerprints,  state  identification  number  or  a 
description  of  the  specific,  reportable  event  identified  by  date  and  agency  or 
court.    In  addition,  until  1990,  at  least  one  state  (Texas)  had  interpreted  its 
records  law  to  disallow  access  to  criminal  record  information.   Texas'  open 
public  records  law  was  amended  in  1990  and  the  Texas  Attorney  General 
subsequently  issued  an  opinion  that  an  individual  has  a  special  right  of  access 
to  his/her  criminal  records  and  may  authorize  someone  else  to  obtain  those 
records  (ibid).   The  National  Conference  of  Commissioners  on  Uniform  State 
Laws  adopted  model  state  legislation  making  conviction  data  available  to  the 
public,  provided  that  requesters  supply  certain  important  information;  all 
nonconviction  information  would  be  unavailable  (BJS,  November  1988b). 

Child  care  and  youth-serving  organizations  in  these  states  may  be  able 
to  conduct  criminal  record  checks,  at  least  with  respect  to  state  records,  by 
complying  with  the  requirements  set  forth  in  the  public  records  laws. 


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V.    USE  OF  CRIMINAL  RECORD  CHECKS  FOR 

PRE-EMPLOYMENT  AND  LICENSING  PURPOSES 

In  the  past  two  decades,  the  creation  of  a  national  criminal  history 
information  system  has  flourished.    Although  criminal  history  information 
systems  were  originally  designed  with  the  sole  needs  of  criminal  justice 
agencies  in  mind  (e.g.,  using  the  records  for  investigation,  arrest,  bail  setting 
and  sentencing  purposes),  today's  typical  "user"  of  criminal  history 
information  is  likely  to  be  a  noncriminal  justice  agency  seeking  to  make  a 
more  informed  hiring  or  volunteer  placement  decision.   This  leads  not  only  to 
questions  of  whether  criminal  records  are  accessible  to  public  and  private 
employers,  but  also  to  what  extent  such  use  is  appropriate  and  effective  in 
screening  out  potentially  abusive  child  care  and  youth-service  workers. 

Given  the  nature  and  intensity  of  state  and  federal  legislative  and 
regulatory  efforts  regarding  criminal  background  checks,  one  is  inclined  to 
believe  that  use  of  criminal  history  information  by  public  and  private 
employers  is  indeed  appropriate.    Whether  it  is  highly  effective  in  weeding  out 
employees/volunteers  who  may  harm  children  is  of  great  debate. 

According  to  Davidson  (1986a),  "Although  new  pre-employment  record 
screening  laws  have  become  the  single  most  common  legislative  response  to 
the  out-of-home  abuse  problem,  their  immediate  promised  impact  of  'screening 
out'  child  molesters  has  been  minimal."   Of  major  concern  is  the  quality, 
relevance  and  likelihood  of  obtaining  criminal  history  records.    Many  insist 
that  arrest  and  conviction  records  paint  a  limited  picture  of  the  prevalence  of 
the  child  abuse  problem.9  In  their  work  with  convicted  sexual  offenders, 
Groth  and  his  colleagues  (1982)  found  that  offenders  committed  from  two  to 
five  times  as  many  sexual  assaults  as  appear  on  record;  child  molesters 
admitted  to  an  average  of  five  offenses  for  which  they  were  never  caught. 

So  Why  Conduct  a  Criminal  Record  Check? 

Probably  the  two  most  predominant  counterarguments  to  skeptics  of 
criminal  record  checks  are  that  (1)  identifying  even  one  child  offender  may 
save  hundreds  of  children  from  abuse  and  (2)  conducting  criminal  record 
checks  deters  many  potentially  abusive  individuals  from  applying  to  positions 
which  give  them  access  to  children.    (The  deterrent  claim,  however,  presumes 
that  an  individual  has  a  criminal  record  on  file  waiting  to  be  disclosed.) 
Child-  and  youth-serving  organizations  may  also  employ  criminal  record 
checks  because  the  checks  serve  as  an  objective,  independent  source  of 
background  information  and  are  not  contingent  on  an  individual's  willingness 
to  be  candid.    In  addition,  criminal  record  checks  serve  as  a  visible  indicator 
of  an  organization's  commitment  to  preventing  abuse  and  are  fast  becoming  a 
necessary  protection  against  liability  and  negligence. 


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Background  on  Criminal  History  Information  Systems 


10 


Pursuant  to  federal  legislation,  the  U.S.  Attorney  General  collects  and 
maintains  criminal  records.    The  Attorney  General  is  authorized  to  exchange 
this  information  with  state  and  local  governments  and  law  enforcement  entities; 
a  responsibility  the  Attorney  General  has  delegated  to  the  Federal  Bureau  of 
Investigation  (FBI).    Currently,  the  FBI  maintains  criminal  record  information 
through  (1)  the  FBI  Identification  Division,  which  houses  the  fingerprint 
record  repository  and  (2)  the  National  Crime  Information  Center  (NCIC), 
which  contains  the  Interstate  Identification  Index  (III).   The  latter  is  a 
telecommunications  system  linking  federal  and  state  files,  which  also  interfaces 
with  the  FBI  Identification  Division. 

The  FBI  has  maintained  a  national  criminal  history  record  repository  in 
the  FBI  Identification  Division  since  1924.   The  development  of  computerized 
information  systems  did  not  arise  until  1967,  when  the  NCIC  was  established 
to  provide  criminal  justice  agencies  with  24-hour-a-day  access  to  automated 
files  on  wanted  and  missing  persons  and  stolen  property.   This  advancement 
led  to  the  implementation  of  an  on-line  Computerized  Criminal  History  system 
(CCH)  in  1971,  which  served  as  a  national  repository  of  offender  criminal 
history  files  for  law  enforcement  purposes  only.   CCH  was  phased  out  in  the 
late  1970s,  due  to  lack  of  participation  by  the  states,  and  replaced  with  the 
Interstate  Identification  Index  (III). 

The  III  facilitates  interstate  and  federal/state  exchange  of  criminal 
history  records  for  both  criminal  and  noncriminal  justice  purposes  (e.g., 
employment  and  licensing)  and  serves  as  a  "pointer"  to  refer  agencies  to  more 
complete  state  or  federal  files.   When  fully  operational,  the  III  will  serve  as  a 
national  index  to  link  together  state  repositories.    Of  the  20  states  currently 
participating  in  III,  an  average  of  52  percent  of  the  files  are  available.    An 
additional  22  states  plan  to  participate  within  five  years  (BJS,  March  1991). 
Criminal  records  of  non-participating  III  states  are  only  available  through  a 
standard  FBI  fingerprint  check. 

As  of  December  1989,  there  were  over  45.6  million  individual 
offenders  in  state  criminal  history  repositories;  an  increase  of  almost  32 
percent  from  1984.    Over  6  million  arrest  fingerprints  were  submitted  to  state 
repositories  in  1989  alone  (approximately  one-fourth  of  which  were  returned  as 
unacceptable).    At  the  federal  level,  the  FBI  maintains  over  26.4  million 
criminal  records;  14.4  million  of  which  are  automated  and  available  through 
III  (BJS,  January  1992).    In  March  1991  alone,  the  FBI  received 
approximately  427,000  criminal  fingerprint  cards,  of  which  over  8  percent 
were  returned  because  they  were  illegible  and  could  not  be  classified.    (This 
translates  to  an  annual  rejection  rate  of  close  to  400,000  prints,  many  of  which 
are  never  resubmitted.)   Also  in  that  one  month,  the  FBI  received 


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approximately  223,000  dispositions  and  processed  1.4  million  III  name-check 
requests.  Some  346,000  III  fingerprint  record  requests  came  in  follow-up  to 
the  name  checks  (ibid). 

It  should  be  noted  that  the  FBI  generally  cannot  disseminate  criminal 
records  directly  to  private  employers,  but  organizations  can  access  FBI  records 
through  a  designated  state  agency  which  serves  as  the  authorized  middle- 
man."   In  addition,  access  to  juvenile  records  is  limited.    A  November  1989 
Bureau  of  Justice  Statistics  survey  reported  that  75  percent  of  state  law 
enforcement  agencies  have  policies  for  sealing  juvenile  records,  79  percent  for 
expunging  such  records.    However,  President  Bush's  March  1991  Violent 
Crime  Control  Initiative  led  to  the  authorization  of  the  FBI  to  collect  records 
of  juvenile  offenders  from  state  agencies  willing  to  cooperate.    While  states 
are  not  required  to  forward  juvenile  records  to  the  central  repository,  they 
now  may  be  encouraged  to  do  so  (Ritchie,  1993). 

B.     Child  Offender  Arrests  and  Convictions  Are  Lacking 

Despite  what  seems  like  a  voluminous  amount  of  criminal  history 
records  on  file,  arrest  and  conviction  records  for  child  offenders  are  often  hard 
to  come  by.   The  Select  Committee  on  Children,  Youth,  and  Families  (March 
1987b)  asserts,  "While  nearly  all  States  report  involvement  of  Child  Protective 
Services  with  law  enforcement  agencies,  they  cannot  report  the  rate  of 
indictment,  prosecution  and/or  convictions  related  to  child  abuse  and  neglect, 
nor  are  they  able  to  report  the  percent  of  substantiated  cases  of  abuse  and 
neglect  which  are  referred  to  law  enforcement  authorities. "   The  Department 
of  Justice  acknowledged  that  "Many  [extrafamilial  child  sexual  abusers]  have 
previously  been  arrested  for  violent  or  exploitative  acts  against  children  - 
some  a  number  of  times.    However,  if  they  have  not  been  convicted  .  .  . 
privacy  laws  deny  their  employers  or  potential  employers  access  to  their 
records."    The  result,  according  to  the  Justice  Department,  is  that  "the  vast 
majority  of  arrested  child  sex  abusers  are  able  to  go  from  job  to  job  with  little 
fear  that  arrests  in  connection  with  previous  employment  will  ever  be 
discovered  by  future  employers"  (U.S.  Department  of  Justice,  May  1986). 

Arrests  for  child  offenses  grew  faster  than  any  other  type  of  arrest  from 
1969  to  1990,  yet  the  Justice  Department  has  indicated  that  90  percent  of  all 
child  abuse  cases  do  not  go  forward  to  prosecution  (Senate  Judiciary 
Committee,  November  1991  and  May  1989).    The  "funnel  effect" 
characteristic  of  other  felony  offenses,  (i.e.,  at  each  stage  of  the  adjudication 
process  the  number  of  offenders  dwindles,  leaving  only  a  few  to  be  sentenced 
to  terms  over  one  year),  is  also  prevalent  in  child  abuse  crimes  (BJS, 
December  1984). 


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Other  studies  confirm  this  phenomenon.    Los  Angeles  school  district 
officials  revealed  that  of  the  over  8,300  reported  child  abuse  cases  in  1988-89, 
only  7  to  10  percent  were  actually  prosecuted,  about  3  percent  ending  in 
convictions  (Daily  News,  December  1990).    And  Finkelhor  and  Williams 
(1988)  found  that  of  all  substantiated  sexual  abuse  cases  in  day  care,  just  over 
a  quarter  (26  percent)  ended  in  conviction.    Although  the  large  majority  of 
those  convicted  spent  time  in  prison  (88  percent),  more  than  half  could  expect 
to  be  back  on  the  streets  before  their  victims  finished  the  first  grade. 

When  the  scope  is  broadened  to  include  substantiation  of  any  type  of 
criminal  behavior,  the  statistics  are  not  much  different.    The  Bureau  of  Justice 
Statistics  reports  that  about  6  percent  of  the  people  are  responsible  for  as  much 
as  70  percent  of  the  violent  crimes  (BJS,  January  1992).   The  probability  of 
arrest  for  most  crimes  is  15  percent  and  when  an  arrest  does  occur,  the 
charges  are  dropped  or  dismissed  in  over  half  of  the  cases  (House 
Subcommittee  on  Civil  and  Constitutional  Rights,  October  1987).    Of  all 
felony  arrests  presented  by  police  for  prosecution,  52  percent  are  rejected  at 
screening,  dismissed  or  diverted  without  plea  before  trial,  or  result  in  an 
acquittal.    Fewer  than  25  percent  of  those  arrested  are  found  guilty  of  the 
offense  for  which  they  were  arrested.    In  addition,  the  Bureau  of  Justice 
Statistics  found  that  the  percentage  of  felony  arrests  resulting  in  felony 
convictions  is  as  low  as  6  percent  in  some  states  (ibid). 

C.     Likelihood  of  Discovering  a  Person  with  a  Criminal  Record 

Based  on  what  we  now  know  about  arrests  and  convictions,  the 
pervading  question  then  becomes:    What  are  the  chances  that  a  criminal 
background  check  on  those  working  with  children  will  reveal  prior  criminal 
activity?    For  child  offenders,  it  is  slim  -  and  this  is  one  of  the  biggest 
criticisms  about  the  use  of  criminal  record  checks  for  screening  purposes.    The 
case  of  John  W.  Shaver,  a  former  day  care  center  operator,  illustrates  this 
problem.    In  1983,  the  state  of  Hawaii  revoked  Mr.  Shaver's  day  care  license 
after  complaints  of  child  abuse.    No  criminal  charges  were  brought  against 
Shaver  in  this  case;  however,  about  a  year  later,  Shaver  pleaded  guilty  to  a 
misdemeanor  count  of  operating  another  preschool  from  his  Hawaii  home 
without  a  license.    Shaver  left  Hawaii  and  two  years  later  opened  a  day  care 
center  in  Florida,  where  he  was  arrested  and  charged  with  possession  of  child 
pornography.    While  Florida  had  conducted  a  criminal  background  check  on 
Shaver,  nothing  turned  up  because  the  Hawaii  case  did  not  involve  criminal 
charges  {Honolulu  Advertiser,  February  4,  1990). 

In  fact,  the  likelihood  that  any  child  abuser  will  have  a  criminal  record 
ranges  from  1  to  15  percent,  averaging  around  the  5  percent  mark  (BJS,  April 
1987;  Davidson  etal.,  1991;  DHHS,  1985;  Finkelhor  and  Williams,  1988). 
Even  if  there  is  a  record  of  a  sex  offense,  it  does  not  always  indicate  if  the 


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victim  was  a  child  or  an  adult.    In  addition,  while  95  to  97  percent  of  day  care 
workers  are  female,  80  to  85  percent  of  FBI  records  are  on  males,  further 
limiting  the  probability  of  identifying  a  female  offender  (DHHS,  1984a). 

Most  statistics  on  criminal  record  "hit"  rates  are  discouraging,  often 
landing  below  1  percent  and  sometimes  creeping  above  5  percent.    The  Senate 
Judiciary  Committee  (November  1991),  however,  did  issue  an  encouraging 
word:    within  one  year,  six  states  using  criminal  background  checks  identified 
more  than  6,200  individuals  convicted  of  serious  criminal  offenses  (including 
child  abuse,  sex  offenses  and  violent  crimes)  who  were  seeking  jobs  as  child 
care  providers.    (Readers  should  be  aware  that  because  the  total  number 
screened  was  not  indicated,  the  actual  percentage  hit  rate  cannot  be 
ascertained.)    Other  findings  provide  a  more  complete,  although  less  favorable, 
picture  of  criminal  record  checks.    Below  are  several  states'  experiences  in 
conducting  criminal  record  checks  to  screen  out  unsuitable  child  care  and 
youth-service  workers: 

•  Out  of  the  1 15,333  people  screened  in  FY  '91  against  the  Texas  Department 
of  Public  Safety  criminal  histories,  only  860  (.7  percent)  had  relevant  criminal 
history  matches;  out  of  309  FBI  fingerprint  checks  done  on  new  Texas 
residents,  only  9  (3  percent)  were  identified  as  having  a  criminal  history 
(Senate  Judiciary  Committee,  November  1991). 

•  Fingerprint  checks  on  over  21,700  New  York  City  child  care  workers  yielded 
only  170  hits,  a  less  than  1  percent  hit  rate.  Only  14  were  for  sexual  offenses 
and  4  for  endangering  the  welfare  of  a  child;  almost  half  of  those  with  records 
were  custodial  staff  (Gordon,  1986-87). 

•  Only  2  of  3,000  people  screened  in  Florida  (.07  percent)  were  identified  as 
having  criminal  histories,  only  one  of  these  for  sex  crimes  (DHHS,  1985). 

•  A  statewide  fingerprint  check  of  570  day  care  operators/employees  in  Georgia 
resulted  in  only  a  single  "hit"  (.2  percent);  name  checks  of  2,400  identified 
only  2  others  (.08  percent)  (DHHS,  1985). 

•  Out  of  2,000  checks  on  foster  and  adoptive  parents  in  Connecticut,  less  than 
75  had  a  criminal  record,  a  rate  of  about  4  percent  (Davidson  et  al.,  1991). 

•  Of  the  9,000  child  care  providers  checked  in  Massachusetts  during  the  first 
half  of  1990,  46  were  disqualified  and  25  were  approved  with  convictions; 
this  translates  into  .8  percent  with  any  type  of  conviction,  but  only  .5  percent 
that  were  deemed  relevant  (Davidson  et  al.,  1991). 

•  In  New  Hampshire's  first  year  of  criminal  background  checks  on  all  day  care 
providers,  employees  and  adult  household  members,  only  8  applications  out  of 
about  250  processed  (3.2  percent)  were  denied  {Boston  Globe,  November  25, 
1984). 

•  In  1987,  Broward  County's  police  department  processed  criminal  record 
checks  for  5,315  potential  school  employees  and  denied  from  4  to  6  percent  of 
applicants  due  to  felony  convictions,  the  majority  of  which  were  for  drug 
offenses  (Zakariya,  1988). 

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D.     The  Growing  Use  of  Criminal  Records  for  Employment  and 
Licensing  Purposes 

The  controversy  surrounding  the  use  of  criminal  records  for 
employment  and  licensing  purposes  has  escalated  with  the  growing  number  of 
noncriminal  justice  agencies  adopting  this  practice.    In  some  states,  the  number 
of  requests  from  noncriminal  justice  agencies  for  employment  and  licensing 
purposes  has  exceeded  that  from  criminal  justice  agencies.    The  Office  of 
Technology  Assessment  (1982)  found  that  53  percent  of  all  FBI  records 
requests  were  made  by  noncriminal  justice  users,  with  the  Department  of 
Defense  and  the  Office  of  Personnel  Management  accounting  for  about  30 
percent  and  state  and  local  agencies  for  the  other  23  percent.    As  of  1983, 
over  3.7  million  criminal  records  had  been  reviewed  for  employment  purposes 
(Gordon,  1986-87). 

The  range  of  employers  and  licensing  agencies  that  can  access  state  and 
federal  records  is  growing  rapidly;  there  are  now  over  64,000  authorized  users 
of  the  FBI  system  (BJS,  March  1991).    New  York  allows  or  requires 
government  agencies,  schools,  day  care  programs,  museums,  hospitals,  banks 
and  law  enforcement  agencies  to  screen  criminal  records  for  employment 
purposes  —  and  nonconviction  data  may  be  disseminated.  California  authorizes 
screening  for  auto  mechanics,  barbers,  cosmetologists,  optometrists,  liquor 
store  owners,  pest  control  employees,  real  estate  brokers  and  notary  publics, 
among  others.  Youth-service  organizations  in  California  can  also  access 
records. 

A  report  examining  the  effects  of  Florida's  open  records  policy  found 
that  some  760  agencies  and  organizations  that  can  search  the  state  records  - 
including  health  care,  youth  programs,  foster  parent  and  adoption  agencies, 
schools,  and  substance  abuse  programs  —  filed  approximately  167,000  criminal 
record  requests  in  fiscal  year  1988.    This  was  an  increase  of  29  and  57  percent 
over  fiscal  years  1987  and  1986  respectively.    Requests  for  the  first  three 
months  of  fiscal  year  1989  represented  an  almost  21  percent  rise  over  the  same 
period  in  1988;  an  increase  attributed  in  part  to  the  prevalence  of  drug  and 
child  abuse  offenses  and  the  risk  of  liability  (SEARCH  Group,  Inc.,  March 
1990). 

As  indicated  in  Figure  B,  Hayes  and  her  colleagues  (1990)  found  that 
27  of  the  states  (53  percent)  conduct  criminal  record  checks  on  family  day 
care  providers;  29  states  and  the  District  of  Columbia  (59  percent)  conduct 
criminal  record  checks  on  center  care  providers;  and  about  half  of  the  states 
(49  percent)  conduct  criminal  record  checks  for  both  family  day  care  and 
center  care  providers.  (Figure  B  also  exhibits  the  number  of  states  conducting 
child  abuse  registry  checks  for  family  and  center  day  care  workers.    Screening 
against  child  abuse  registry  checks  is  discussed  in  Section  VI.) 


27 


141 


Figure  B:   State  Regulations  of  Family  &  Center  Day  Care,  Caregiver  Screening 


33 

5M 

2B 

- 

53* 

26 

49X 

23 

20 

IB 

1 
li 

16 

1 

m 

12 

TO 

9 

B 

< 

m. 

S, 

w, 

2 

n 

Cantor    Day    Car*  Paml  ly    Day   Card  Farm  ly   &   C«nt«r    Cara 

Crim  record  etc    RO^  Child  abuse  reo  ctV//7A  Both,  chects 


Source:    Hayes  cl  al..  1990 


In  the  public  school  system,  Titus  and  DeFrances  (1989)  surveyed  over 
1,100  public  schools  and  found  that  58  percent  conducted  criminal  record 
checks,  most  commonly  by  name  and  social  security  number;  fingerprints  and 
aliases  were  used  half  as  often.    Local,  state  and  federal  law  enforcement  were 
the  most  common  sources  of  information,  while  courts  and  sex  offender  or 
child  abuse  registries  were  seldom  used.     The  authors  also  found  that  of  those 
schools  conducting  criminal  record  checks,  all  do  checks  on  applicants  for 
permanent  employment;  most  on  temporary,  part-time  and/or  substitutes;  and 
less  than  half  on  volunteers  or  employees  of  subcontractors.    And  in  a  study  of 
screening  procedures  used  by  Big  Brothers/Big  Sisters  of  America,  Carrilio 
(1987)  found  that  79  percent  of  the  agencies  use  local  arrest  and  conviction 
records;  67  percent  use  state  records;  and  25  percent  request  federal  records. 


28 


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E.     Criminal  History  Information  and  Data  Quality  Issues 
Cause  for  Concern 


Completeness  of  Records  and  Disposition  Reporting 

A  fundamental  and  often-cited  deficiency  of  criminal  history  records 
concerns  disposition  data.    Two-thirds  of  the  states  report  that  they  sometimes 
receive  dispositions  that  can't  be  linked  to  arrest  information;  on  average, 
about  18  percent  of  dispositions  can't  be  linked  to  existing  records.    In 
addition,  about  30  percent  of  the  states  have  backlogs  in  entering  dispositions 
into  the  database  (BJS,  March  1991).    As  of  mid-June  1991,  the  FBI  had  its 
own  backlog  of  over  3  million  criminal  records  waiting  to  be  updated  and 
500,000  new  files  that  had  yet  to  be  entered  -  a  problem  requiring  $12  million 
to  fix  (BJS,  January  1992). 

At  a  1991  conference  to  discuss  improving  the  quality  of  criminal 
history  records,  then-Attorney  General  Thornburgh  chided  the  incompleteness 
of  criminal  history  records,  noting  that  there  is  only  a  two  in  three  chance  of 
seeing  any  criminal  record  when  a  name  (of  someone  who  does  in  fact  have  a 
criminal  record)  is  entered.    This  is  due  in  part  to  the  fact  that  over  8  million 
records  are  not  computerized  and  40  to  60  percent  of  the  over  24  million 
names  in  the  FBI  files  do  not  have  a  disposition  (BJS,  January  1992). 

Differences  exist  between  states  not  only  in  the  scope  of  disposition 
reporting  to  criminal  history  repositories,  but  also  on  whether  it  is  mandated. 
A  SEARCH  Group  report  on  the  interstate  exchange  of  criminal  history 
records  concluded  that  there  are  disadvantages  to  relying  on  the  laws  and 
policy  of  either  the  requesting  or  providing  state  agency  and  urged  the 
development  of  national  standards  agreed  to  by  all  participating  states 
(SEARCH  Group,  May  1981).    According  to  a  January  1992  Bureau  of  Justice 
Statistics  report: 


32  states  and  the  District  of  Columbia  require  that  decisions  not  to 

prosecute  be  reported  to  the  repository; 

41  states  mandate  reporting  of  felony  trial  court  dispositions; 

36  states  require  reporting  of  state  prison  admission  and  release 

information  on  felonies; 

23  states  require  reporting  of  local  correctional  facilities  admission  and 

release  information  on  felonies; 

30  states  require  parole  data  and  30  require  probation  data  to  be 

reported;  and 

Only  24  states  require  that  the  arresting  agency  report  a  decision  not 

to  charge  the  person. 


143 


The  Bureau  of  Justice  Statistics,  in  its  1985  report  on  the  data  quality 
of  criminal  history  records,  found  that  "in  more  than  half  of  the  states, 
repositories  do  not  have  authority  to  compel  agencies  to  report  arrests  or 
dispositions"  (BJS,  October  1985b).    Although  19  states  legally  require 
fingerprints  of  those  brought  up  on  felony  charges  be  submitted  to  the 
repository,  10  states  report  that  fingerprints  are  actually  obtained  and 
submitted  in  10  percent  or  less  of  the  applicable  cases;  the  remaining  9  states 
estimate  that  about  half  of  cases  are  submitted  (BJS,  March  1991).    Most 
studies  on  disposition  reporting  deal  with  state  systems  exclusively,  leaving 
little  knowledge  about  reporting  rates  in  local  criminal  history  record  systems 
(op  cit).    However,  a  1982  Office  of  Technology  Assessment  study  did  find 
that  when  FBI  files  were  compared  with  local  source  data,  20  percent  did  not 
agree. 

Timeliness  of  Criminal  History  Information  -  Both  in  Receiving  Records  and 
Processing  Requests 

Many  noncriminal  justice  agencies  conducting  criminal  record  checks 
complain  about  the  lengthy  turnaround-time  it  takes  to  receive  results.    State 
government  agencies  requesting  information  from  the  FBI  reported  an 
estimated  processing  time  of  6  to  8  weeks.    Turnaround-time  for  state 
fingerprint  checks  ranged  from  several  days  to  6  weeks,  while  most  state  name 
checks  took  no  more  than  15  days.    Youth-serving  agencies,  however, 
reported  record  processing  delays  "of  many  months."    Limited  funding,  lack 
of  automation,  and  non-readability  of  fingerprints  were  all  cited  as  contributing 
to  delays  (Davidson  et  al.,  1991).    Timeliness  is  especially  problematic  for 
child-  and  youth-serving  organizations  given  the  high  turnover  rate  (sometimes 
reaching  50  percent)  among  some  child  care  workers.    This  constant  need  for 
replacement  staff  makes  a  wait  of  several  weeks,  let  alone  several  months, 
quite  burdensome.    And  provisional  hiring,  i.e.  permitting  an 
employee/volunteer  to  work  pending  the  check  seems  to  at  least  partially 
defeat  the  purpose  of  the  checks  -  to  prevent  access  to  children  by  potentially 
abusive  persons. 

On  the  provider  end,  timeliness  is  also  a  problem  for  state  criminal 
history  repositories  both  in  terms  of  receiving  and  entering  information  from 
various  law  enforcement  sources.    According  to  a  January  1992  Bureau  of 
Justice  Statistics  report,  9  states  report  backlogs  in  entering  arrests  and  13 
states  report  backlogs  for  entering  dispositions  into  the  database.    The  time 
lapse  between  arrest  and  receipt  of  arrest  data  by  repository  ranges  from  1  to 
42  days;  disposition  reporting  ranges  from  1  day  to  1  year  (for  one  state);  and 
correctional  facility  admission  information  is  reported  in  1  to  90  days. 
Additional  BJS  findings  (March  1991)  reveal  that  the  average  number  of  days 
between  receipt  of  information  and  entry  into  the  master  name  index  and  the 
criminal  history  database  is  29  and  the  average  number  of  days  from  final  trial 


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court  disposition  and  entry  into  the  criminal  history  database  is  79  (ranging 
from  less  than  1  day  to  952  days). 

Processing  Fees 

At  the  writing  of  this  report,  the  FBI  charged  employers  and  licensing 
agencies  $23.00  to  conduct  a  national  fingerprint  check;  $21.00  of  this  covers 
the  FBI's  outlays  and  $2.00  goes  to  the  states  to  defray  handling  costs. 
Federal  agencies,  such  as  the  Department  of  Defense  and  the  Office  of 
Personnel  Management,  enjoy  a  reduced  rate  of  $17.00.    Individuals  wishing 
to  get  a  copy  of  their  own  criminal  history  records  under  the  Freedom  of 
Information  Act  also  pay  $17.00,  although  the  FBI  strongly  asserts  that 
records  obtained  under  the  FOIA  cannot  be  used  for  employment  purposes. 

Almost  three-fourths  of  the  states  and  the  District  of  Columbia  will  do 
a  criminal  background  check  by  name,  charging  anywhere  from  no  fee  to 
$25.00;  fees  for  the  13  states  that  do  a  fingerprint  check  range  from  $3.00  to 
$27.00.    New  York  will  not  process  a  criminal  background  check  unless  it  has 
an  authorized  agreement  with  the  requesting  agency.12 

Accuracy  of  Criminal  History  Information 

Complaints  regarding  completeness  and  timeliness  are  joined  by 
concerns  about  the  accuracy  of  individual  criminal  histories.    A  national  study 
of  police  arrest  statistics  from  1980  to  1982  showed  that  "arrest  statistics  are 
not  comparable  across  police  departments,  because  there  is  widespread 
violation  of  the  rules  and  procedures  established  by  the  FBI  for  compiling 
arrest  statistics"  {Police  Foundation  Reports,  1984).    This  becomes 
problematic  since,  as  Gordon  (1986-87)  claims,  inaccurate  criminal  records 
have  more  impact  because  they  now  "travel  farther,  are  seen  by  more  people, 
are  copied  and  recopied,  and  have  more  uses." 

According  to  the  BJS  November  1988  report,  Public  Access  to  Criminal 
History  Record  Information,  release  of  information  may  be  unfairly  damaging 
to  an  applicant  in  circumstances  where  a  record:  (1)  relates  to  a  different 
person;  (2)  is  inaccurate  or  incomplete;  (3)  is  accurate  and  complete,  but  it 
relates  to  a  conviction  or  arrest  which  is  unconstitutional  or  otherwise 
improper;  and  (4)  is  accurate  and  complete,  but  "old"  and  no  longer  reflective 
of  person's  character.    These  circumstances  may  be  more  prevalent  than 
anticipated:    A  national  survey  revealed  that  about  20  to  35  percent  of  criminal 
history  records  at  the  state  and  local  levels  are  materially  inaccurate  or 
ambiguous  (BJS,  October  1985b).    And  Gordon  (1986-87)  states  that  each  day 
at  least  12,000  inaccurate  or  invalid  reports  on  wanted  persons  alone  are  sent 
by  state  and  local  law  enforcement  agencies  to  NCIC;  a  mistake  often 
requiring  a  court  order  to  rectify. 


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Barriers  to  Obtaining  Quality  Information 

Part  of  the  problem  in  obtaining  quality  information  has  been  a  lack  of 
recognition  of  the  importance  of  criminal  history  data.    Most  criminal  justice 
agencies,  including  the  FBI,  "generally  have  viewed  their  primary  information 
mission  as  .  .  .  policing  the  information,  and  not  as  providing  information  to 
people  in  order  to  drive  decisionmaking"  (BJS,  January  1992).    Obstacles  to 
receiving  suitable  information  identified  at  the  state  level  include:  poor  internal 
written  procedures,  poor  validation  procedures,  failure  to  submit 
arrest/fingerprint  cards  and/or  dispositions,  poor  documentation  of  original 
reports,  and  poor  hit  confirmation  procedures  (House  Subcommittee  on  Civil 
and  Constitutional  Rights,  July  1986). 

The  push  for  improved  data  quality  is  not  a  new  concept;  as  of  1986, 
49  states  had  adopted  data  quality  legislation.    Despite  these  efforts, 
"significant  and  unacceptable  data  quality  problems  remain"  at  federal,  state 
and  local  levels  and  improvements  have  been  "uneven  and  ultimately 
unacceptable"  (ibid).   The  January  1992  BJS  report,  National  Conference  on 
Improving  the  Quality  of  Criminal  History  Records,  identified  the  following 
factors  as  inhibiting  satisfactory  data  quality: 

(1)  absence  of  clear  correctional  philosophy,  which  leads  to  questions  of  what 
data  to  collect,  how  it  should  be  used  and  what  level  of  quality  is  acceptable; 

(2)  proliferation  of  correctional  programs  which  result  in  information  being  left 
behind  when  an  offender  moves  from  one  program  to  another; 

(3)  lack  of  uniform  definitions  in  correctional  terminology  from  one  jurisdiction 
to  another; 

(4)  failure  to  understand  information  systems  in  the  development  of  effective 
crime  control;  and 

(5)  increased  and  perhaps  excessive  demand  of  accountability,  leading  to  a 
reliance  on  quantitative  versus  more  appropriate  qualitative  goals. 

Strategies  for  Improving  Data  Quality 

As  discussed,  the  fact  that  criminal  records  are  being  made  increasingly 
available  to  noncriminal  justice  agencies  for  licensing  and  employment 
purposes  raises  serious  concerns  about  quality  of  the  information  provided. 
Compounding  the  problem  is  the  fact  that  our  criminal  justice  system  is 
incredibly  fragmented;  there  are  over  16,000  city,  county  and  state  law 
enforcement  agencies  (Nemecek,  1990).    "The  mobility  of  our  society,  the 
maze  of  procedures  and  the  sheer  number  of  offices  involved  have  made  a 
systematic  method  of  access  nearly  impossible"    (Long,  1992).    This 
fragmentation  of  the  criminal  justice  system  affects  not  only  basic  operations, 
but  the  willingness  and  ability  to  transfer  information. 


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The  Bureau  of  Justice  Statistics  (October  1985b)  outlined  several  broad 
improvement  strategies,  the  most  important  of  which  included  prioritization  of 
the  data  quality  issue;  improving  relationships  between  repositories  and  the 
courts;  increasing  automation;  and  obtaining  adequate  funding  levels.    Further, 
BJS  recommended  examining  the  issues  from  the  user's  perspective,  not  just 
the  data  manager's.    An  April  1989  follow-up  report  specified  additional 
improvement  measures: 

•  Conduct  periodic  baseline  audits  to  evaluate  data  quality  procedures  and  assess 
completeness  and  accuracy  of  records. 

•  Develop  uniform  documents,  forms,  offense  codes  and  reporting  procedures  to 
improve  communication  and  cooperation. 

•  Develop  a  single,  system-wide  tracking/case  numbering  system  to  link 
reported  data  to  the  appropriate  individual  and  case  cycle;  this  would  include 
ability  to  track  by  specific  charges  (e.g.,  child  abuse). 

•  Institute  laws  requiring  mandatory  reporting  by  all  states  to  central 
repositories  and  specify  penalties  for  noncompliance. 

•  Provide  standardized  training,  both  at  entry  level  and  on  continuing  basis,  for 
data  entry  and  documenting  personnel. 

In  response  to  the  uneasiness  over  less-than-optimal  data  quality,  the 
Crime  Control  Act  of  1990  required  states  to  set  aside  at  least  5  percent  of 
their  block  grant  funds  for  the  improvement  of  criminal  justice  records  (e.g., 
completion  of  records,  full  automation,  reporting  to  the  FBI).    In  addition,  the 
Bureau  of  Justice  Statistics  began  administering  a  3-year,  $27  million  Criminal 
History  Record  Improvement  Program  (CHRI)  to  increase  states'  disposition 
reporting  and  flagging  of  felony  records  in  the  database  (BJS,  January  1992). 
As  of  February  14,  1992,  over  $16.2  million  CHRI  funds  had  been  awarded 
for  state  activities  that  include: 

►  Alaska  processing  a  backlog  of  60,000  criminal  history  records 
*■         Arizona  clearing  a  backlog  of  95,000  dispositions 

►  Arkansas  processing  its  backlog  of  over  70,000  arrests  made  within  the  last  5 
years  that  do  not  contain  dispositions 

►  Georgia  eliminating  a  backlog  of  348.000  fingerprint  cards  and  disposition 
reports 

►  Maryland  developing  a  "live  scan"  booking  system  to  help  with  arrest 
processing 

►  Oregon  reducing  a  disposition  backlog  of  32,000 

*■         Tennessee  automating  to  clear  a  5-year  backlog  of  dispositions 
*■         Wyoming  automating  7,800  manual  records 


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Point-of-Sale  Systems  for  Licensed  Gun  Dealers:  A  Useful  Model? 

Improving  the  quality  of  criminal  history  information  and  developing 
more  effective  computer  systems  is  important  to  many  states,  if  not  for  the 
purpose  of  screening  out  child  offenders,  then  for  attaining  greater  gun  control 
and  reducing  violent  crime.    Several  states  have  instituted  strategies  to  achieve 
the  latter.    Over  40  percent  of  the  states  (20)  currently  conduct  criminal  record 
checks  of  their  state  repositories  in  connection  with  the  sale  of  firearms;  two 
of  these  states  also  check  the  FBI  files  and  10  also  screen  against  the  III  (BJS, 
March  1991).    These  point-of-sale  systems  may  serve  as  models  in  developing 
a  type  of  "point-of-employment"  system  that  child-  and  youth-serving 
organizations  can  access. 

The  Bureau  of  Justice,  Statistics  (January  1992)  explains  that  in 
Delaware,  Florida  and  Virginia,  point-of-sale  systems  allow  licensed  gun 
dealers  to  contact  the  state  police  through  a  toll-free  number  to  instantaneously 
review  a  potential  buyer's  criminal  history  records  and  obtain  approval  or 
rejection  for  the  gun  sale.    All  three  states  offer  this  information  free  of  charge 
to  licensed  dealers,  (Delaware  estimates  it  would  have  to  charge  only  $8.00 
per  transaction  to  break  even),  and  the  average  time  for  confirmation  is  less 
than  10  minutes.    During  Delaware's  first  5  months  of  the  program,  over 
4,680  calls  were  received  from  350  gun  dealers;  about  9  percent  of  sale 
inquiries  were  disapproved.    During  just  4  months  in  1991,  Florida  received 
approximately  74,000  inquiries  and  denied  about  4  percent.    (For  records 
lacking  a  disposition,  Florida  has  24  working  hours  to  obtain  a  disposition  or 
the  sale  is  automatically  approved.)   In  the  first  18  months  of  Virginia's 
program,  which  serves  over  4,000  firearms  dealers,  some  90,655  transactions 
were  processed,  about  2  percent  of  which  were  rejected.    Virginia's  system 
does  both  state  and  national  checks  for  the  dealers  and  it's  biggest  reported 
problem  in  implementing  the  system  has  been  accessing  out-of-state  records 
and  interpreting  the  different  methods  of  reporting  and  disposition  information. 
Virginia's  first-year  costs  for  the  program  were  just  over  $310,000.    The  fact 
that  licensed  gun  dealers  may  enjoy  a  somewhat  higher  "hit  rate"  for  point-of- 
sale  inquiries  than  child-  and  youth-serving  organizations  which  conduct 
criminal  record  checks  may  be  due  in  part  to  differences  between  child  care 
and  youth-service  workers  and  gun-buying  clientele. 

F.      Disadvantages  and  Criticisms  of  Criminal  Record  Checks 

Given  the  continued  fervor  in  trying  to  extend  the  use  of  criminal 
record  checks  for  screening  purposes,  the  U.S.  Advisory  Board  on  Child 
Abuse  and  Neglect  voiced  concern  over  whether  a  major  federal  initiative 
might  result  "in  new  layers  of  bureaucracy  and  new  reams  of  paperwork" 
rather  than  increase  the  level  of  child  protection  (Select  Committee  on 
Children,  Youth  and  Families,  September  1991).    Others  have  expressed 


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complaints  about  the  absence  of  uniform  regulations  and  centralization  of 
control  regarding  criminal  records,  which  could  wreak  havoc  for  organizations 
requesting  out-of-state  records. 

In  addition  to  the  managerial  headaches  that  can  accompany  criminal 
background  checks,  adversaries  fear  that  such  screening  may  foster 
organizational  complacency  and  overconfidence  in  the  selection  of  employees 
and  volunteers.    Critics  worry  that  using  criminal  record  checks  may  lead  to  a 
false  sense  of  security  and  organizations  will  be  less  apt  to  subject  applicants 
to  supplemental,  and  perhaps  more  elucidating  screening  procedures.    If 
criminal  record  checks  identify  offenders  at  all,  it  is  likely  they  will  capture 
only  one  type  of  offender.   This  is  problematic  because,  as  discussed  in  the 
beginning  of  this  report,  the  offender  population  is  a  diverse  one,  complete 
with  unique  offender  subgroups  exhibiting  different  character  traits. 

Add  to  all  of  this,  distress  over  the  amount  of  financial  and  human 
resources  needed  to  conduct  criminal  record  checks,  and  what  emerges  is  a 
difficult  struggle  between  the  need  to  protect  children  and  the  desire  to  keep  an 
organization  functional  and  within  budgetary  constraints. 

Administrative  and  Procedural  Problems 

Conducting  criminal  record  checks  has  been  known  to  consume 
precious  personnel  time  and  sometimes  throws  a  kink  into  otherwise  routine 
staff  selection  and  hiring  procedures.    While  one-third  of  public  schools 
reported  experiencing  no  problems  in  using  criminal  record  checks  for 
prospective  workers  some  difficulties  did  arise,  including  hiring  delays  and 
unsuitable  applicants  not  identified  (see  Figure  C).    Other  comments  by  public 
school  survey  respondents  included  a  preference  for  dialogue  over  use  of 
mailed  written  forms  to  facilitate  more  open-ended,  exploratory  discussions 
about  an  applicant's  performance,  character  traits  and  suitability.    In 
particular,  the  schools  liked  indirect  questions  about  why  the  applicant  left 
his/her  last  job  rather  than  direct  questions  about  criminal  activity  and  related 
behavior.    Ditter  (1986)  also  noted  that  in  screening  for  child  abuse  among 
staff,  many  organizations  opt  for  more  subtle,  less  offensive  approaches. 

Fairfax  County  and  Arlington  school  officials  uttered  dissatisfaction 
with  federal  checks  because  they  applied  to  a  limited  number  of  offenses  and 
missed  records  of  fraud,  drug  charges  or  illegal  gun  possession  (Fairfax 
Journal,  January  8,  1990).    More  recently,  Fairfax  County  schools  were 
forced  to  relax  their  fingerprint  requirements  for  substitute  teachers  due  to  the 
10- week  turnaround  time  and  high  turnover  rate  in  the  substitute  teacher  pool 
(The  Washington  Post,  October  22,  1992).    Louisiana  schools  and  day  care 
centers  have  also  complained  that  the  police  are  "too  slow  in  processing 
criminal  history  reports,"  taking  up  to  18  months  to  complete  the  reports  and 


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thereby  providing  a  window  of  opportunity  for  individuals  to  gain  access  to 
children.    "The  bottom  line  is  that  offenders  are  getting  a  15-  to  18-month  shot 
at  somebody's  child,"  according  to  the  state  police's  supervisor  of  criminal  and 
traffic  records.    The  main  problem,  police  say,  is  outdated  processing 
equipment  (Times -Picayune,  March  11,  1991). 

Figure  C:    Problems  Resulting  From  Criminal  Record  Checks 
As  Reported  By  Public  Schools 


No   proo  lams 


info   not   adoo/  c  f  m«  t  y  Additional    costs 

Creates' delays  Unsuitable  aooiicants  not    iaa 


Source:  Titus  and  DeFranccs,  1989 

Even  London's  Department  of  Social  Services  has  been  plagu°d  by 
administrative  problems  in  conducting  criminal  record  checks.    In  light  of 
growing  public  concern  about  the  risks  to  children  of  abuse  from  employees, 
London  introduced  a  criminal  background  check  system  in  1986.    However, 
disputes  with  the  police  over  who  would  be  liable  if  the  information  provided 
was  incorrect  forced  some  authorities  to  abandon  the  practice.    Due  to  the 
large  number  of  employees  involved,  including  minicab  drivers  who  transport 
children,  the  system  became  bogged  down  and  delays  of  up  to  eight  weeks 
forced  job  applicants  to  look  elsewhere  for  employment  (New  Society,  July  31, 
1987). 

One  additional  administrative  glitch  is  the  need  for  staff  trained  in  how 
to  actually  fingerprint  an  applicant.   This  may  seem  like  a  minor  detail,  but 
sending  a  set  of  illegible  fingerprints  to  the  FBI  or  state  criminal  history 


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repository  and  having  to  repeat  the  process  wastes  valuable  money  and  time. 
Illinois'  licensing  agency  for  child-related  activities  reported  that  in  1990, 
almost  half  of  the  fingerprints  obtained  for  screening  were  unclassifiable,  some 
of  which  could  not  be  read  and  had  to  be  resubmitted  (Davidson  et  al.,  1991). 

Need  for  Interagency  Coordination 

Lack  of  coordination  and  cooperation  among  law  enforcement,  state 
regulatory/  licensing  bodies  and  community  agencies  further  complicates 
matters.    For  example,  when  a  child  fatality  is  subsequently  investigated  by 
police,  child  protective  services  may  not  be  involved;  therefore,  if  a  person 
kills  a  child  under  circumstances  that  do  not  result  in  prosecution  or 
conviction,  the  state  central  child  abuse  registry  does  not  reflect  the  matter. 

This  dearth  of  communication  is  not  limited  to  child  welfare  services: 
an  analysis  of  teacher  revocation  notices  received  from  49  states  by  the  Florida 
Department  of  Education  for  a  five-year  period  found  that  Florida  officials 
were  not  informed  about  as  many  as  35  percent  of  the  certificates  revoked  by 
other  states  (The  News  Chief,  September  25,  1984).    Factors  hindering 
interagency  cooperation  include  the  large  number  of  public  and  private 
agencies  involved;  diversity  in  licensing  and  regulatory  standards;  the  complex 
nature  of  extrafamilial  abuse;  and  the  absence  of  a  uniform  definition  and 
consensus  on  what  constitutes  abuse  in  out-of-home  settings  (Nunno  and  Motz, 
1988). 

Financial  Concerns 

In  these  tight  economic  times,  it  is  not  surprising  that  a  significant 
amount  of  scrutiny  would  center  on  the  cost-effectiveness  and  cost-benefit  of 
criminal  record  checks.    In  Pennsylvania  it  was  determined  that  the  state 
would  have  to  spend  $6  million  on  background  checks,  pursuant  to  the 
DeConcini-Specter  Amendment,  to  gain  an  additional  training  allocation  of 
$633,000  (Special  Reports,  April  14,  1986).   The  U.S.  Department  of  Health 
and  Human  Services  (1985)  calculated  that  to  screen  1  million  employees  as 
per  the  amendment  at  $25.00  for  both  state  and  federal  fingerprint  checks  (the 
going  price  almost  a  decade  ago)  would  cost  $25  million.    DHHS  assumed  that 
if  5  percent  turned  up  with  a  criminal  record  (50,000)  and  2  percent  of  those 
were  child  sexual  abusers  (1,000),  then  the  cost  of  finding  these  1,000 
potential  sexual  abusers  amounted  to  $250,000  per  abuser.    This  lofty  price  tag 
led  Finkelhor  and  Williams  (1988)  to  conclude  that  police  records  checks  "are 
expensive  and  inefficient  prevention  techniques,  identifying  only  a  small 
fraction  of  potential  abusers  at  prohibitive  cost." 

The  Fairfax  County  School  system  spent  an  estimated  $140,000  in  1990 
to  fingerprint  more  than  4,000  job  applicants  ($35.00  per  applicant.)   Using  an 


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estimated  hit  rate  of  5  percent,  200  potentially  abusive  individuals  would  be 
screened  out  to  the  tune  of  $700.00  per  offender.    School  officials  feel  that 
state  and  federal  checks  are  worth  the  money  and  necessary  since  so  many 
applicants  are  new  residents  coming  from  out-of-state  {Fairfax  Journal, 
January  8,  1990).    Hawaii's  Department  of  Education  estimated  that  while 
state  background  checks  are  free,  conducting  FBI  fingerprint  checks  on  an 
estimated  6,000  new  public  school  employees  would  run  them  around 
$138,000  a  year,  not  including  administrative  costs.    The  state's  education 
department  employs  approximately  30,000  full-  and  part-timers,  a  potential 
$690,000  expense  {Honolulu  Advertiser,  November  13,  1991). 

In  examining  the  issue  of  cost  in  greater  detail,  it  is  apparent  that  all  of 
the  information  on  cost  has  not  yet  been  fully  considered.    For  example,  using 
the  DHHS  scenario,  another  way  to  look  at  the  total  cost  of  criminal  history 
record  checks  is  to  consider  the  cost  per  perpetrator  identified.    If  we  use  very 
liberal  estimates  and  assume  that  the  initial  50,000  who  are  identified  have 
some  type  of  criminal  record  (not  solely  a  sex  offense)  that  makes  them 
unsuitable  for  the  position,  then  the  cost  per  offender  drops  dramatically  to 
$500.00.    Still  another  option  might  be  to  ascertain  how  much  criminal  record 
checks  cost  from  a  "per  child  saved  from  abuse"  standpoint.    If  we  speculate 
that  each  offender  may  abuse  from  7  to  100  children  (please  refer  to  page  11), 
then  the  cost  for  each  child  saved  from  abuse  from  the  cohort  of  offenders 
identified  becomes  just  over  $70.00  or  as  little  as  $5.00.    But  this  assumes  that 
preventing  one  offender  from  being  hired  for  that  one  job  will  stop  him  or  her 
from  abusing  the  children  in  other  settings. 

To  carry  this  thought  further,  one  would  have  to  consider  how  costs 
will  accumulate  over  time;  i.e.,  this  cost  estimate  is  really  a  "per  child  saved 
from  abuse"  by  only  one  offender  in  a  particular  employment/volunteer 
setting.    A  child  may  be  exposed  to  a  number  of  people  at  any  given  point  in 
time  (e.g.,  teacher,  coach,  priest,  doctor  and  others),  and  during  childhood  the 
number  of  adult-child  contacts  is  virtually  endless.   To  calculate  true  costs, 
one  would  have  io  add  up  the  expense  of  conducting  criminal  history  record 
checks  on  all  of  the  individuals  that  may  present  some  risk  to  a  child  (e.g., 
school  administrators,  teachers  and  support  staff,  day  care  providers  and  their 
adult  household  family  members  who  may  help  out,  community  recreational 
center  employees  and  volunteers,  youth  development  workers,  health  care 
direct  service  and  support  staff). 

Table  4  provides  a  financial  profile  of  the  estimated  costs  associated 
with  conducting  criminal  record  checks  on  public  school  employees  in  12 
states.    These  examples,  while  only  representing  one  of  the  many  settings  in 
which  adults  come  into  contact  with  children  and  youth,  are  offered  in  part 
because  schools  are  a  place  where  exposure  is  greatest.    In  addition,  estimates 
on  the  number  of  public  school  employees  (instructional  and  non-instructional 


38 


152 


staff)  are  readily  available,  whereas  a  breakdown  on  the  number  of 
recreational  and  youth  development  workers,  as  well  as  other  professions,  is 
not.    Readers  should  note  that  "cost  per  child  saved"  (as  portrayed  in  the 
chart)  only  takes  into  account  the  cost  of  saving  a  child  from  abuse  by  one 
public  school  employee  while  that  child  is  in  the  school  setting.    In  addition, 
the  cost  of  federal  and  state  checks  includes  the  FBI's  $23.00  charge  and  a 
given  state's  own  fee,  but  does  not  include  other  administrative  costs  which 
may  be  prohibitively  expensive  for  some  agencies.  (Administrative  costs  are 
not  included  because  no  reliable  estimates  were  gleaned  from  the  literature.) 


39 


153 


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154 


Contentions  that  Criminal  Record  Checks  are  Unfair  and  an  Invasion  of 
Privacy 

Criticism  of  criminal  background  checks,  however,  extends  beyond  the 
financial,  administrative  and  effectiveness  arenas  to  encompass  issues  of 
privacy  and  fairness.    While  some  individuals  hold  that  people  should  be  given 
a  second  chance  and  an  opportunity  to  start  anew,  others  argue  that  the 
community  has  the  right  to  protect  itself;  not  only  must  individuals  be  held 
accountable  for  their  behavior,  but  organizations  must  be  held  responsible  for 
their  employees'  character. 

Civil  and  constitutional  rights  advocates  reject  the  idea  that  child-  and 
youth-serving  organizations  should  have  increased  access  to  individuals' 
criminal  history  records.    They  object,  in  part,  on  the  grounds  that  employers 
do  not  know  how  to  properly  decipher  and  use  criminal  history  information. 
This  alleged  inability  to  translate  criminal  records,  advocates  argue,  paves  the 
way  for  employer  misinterpretation  and  discrimination.    Secondly,  opponents 
of  criminal  background  checks  argue  that  increased  access  will  have  an 
adverse  effect  on  the  poor,  blacks  and  other  minorities  because  such  groups 
account  for  a  disproportionate  percentage  of  criminal  offenders.    Testimony 
before  the  House  Judiciary  Committee  indicated  that  blacks  are  arrested  four 
times  more  frequently  than  whites,  even  though  only  half  of  those  arrests  ever 
end  in  conviction.    Additional  testimony  revealed  that  one-third  of  the  FBI's 
criminal  history  files  are  on  blacks  and  the  percentage  of  blacks  with  arrest 
records  ranges  from  30  percent  nationwide  to  over  50  percent  in  certain  cities 
such  as  Philadelphia  (Subcommittee  on  Civil  and  Constitutional  Rights, 
October  1987). 

In  sum,  it  has  been  argued  that  police  checks  are  not  effective  as  a 
screening  method  because  they  are  incomplete  and  do  not  provide  enough 
detail  for  certain  offenses;  contain  no  records  on  juvenile  offenders  unless  tried 
as  an  adult;  are  expensive  and  time  consuming;  have  an  adverse  effect  on 
minorities;  are  invasive  and  discourage  the  recruitment  of  quality 
employees/volunteers;  and  can  increase  an  agency's  liability  if  the  agency  fails 
to  use  the  police  check  capability.    These  arguments  need  to  be  weighed  and, 
within  the  privacy  and  due  process  parameters  set  by  the  Constitution, 
balanced  against  the  pivotal  consequences  of  having  repeat  offenders  slip 
through  the  cracks  and  harm  more  children.    The  following  section  reviews  the 
legal  literature  discussing  how  federal  and  state  law  have  resolved  some  of 
these  issues. 


41 


155 


G.     Legal  Issues  Arising  from  the  Use  of  Criminal  History 
Record  Checks 

The  literature  reveals  that  using  criminal  background  checks  to  screen 
out  unsuitable  employees  and  volunteers  has  raised  a  number  of  legal  issues. 
Specifically,  the  literature  discusses:    (1)  whether  the  disclosure  of  criminal 
history  records,  including  arrest  and/or  conviction  information,  implicates 
constitutional  privacy  or  due  process  interests;  (2)  whether  the  disclosure  or 
use  of  criminal  records  in  screening  persons  who  work  with  children  violates 
statutory  or  tort-based  privacy  considerations;  (3)  whether  the  use  of  criminal 
records  as  a  screening  tool  violates  principles  of  fair  employment  practices, 
including  those  discrimination  prohibitions  set  forth  in  Title  VII  of  the  1964 
Civil  Rights  Act;  (4)  whether  an  employer  can  be  held  liable  for  harm  caused 
by  an  employee  or  volunteer  with  a  criminal  record;  and  (5)  whether  a  state 
agency  or  employer  can  be  held  liable  for  harm  caused  by  the  use  of 
inaccurate  criminal  history  information.13 

Constitutional  Issues:  Privacy  and  Due  Process  Considerations 

The  constitutional  challenges  regarding  disclosure  of  criminal 
background  information  have  focused  on  privacy  interests  and  due  process  of 
the  law.    The  1976  Supreme  Court  case  of  Paul  v.  Davis,  424  U.S.  693 
(1976)  and  its  progeny,  however,  effectively  eliminated  most  challenges  based 
on  federal  constitutional  privacy  interests.14   In  Paul,  police  officials 
circulated  a  flier  to  local  merchants,  entitled  "ACTIVE  SHOPLIFTERS," 
which  included  the  plaintiffs  picture.    The  plaintiff  had  been  arrested  for 
shoplifting  some  18  months  earlier  and  never  convicted,  although  the  charges 
were  still  pending.    As  Davidson  and  his  colleagues  (1991)  point  out,  the  Paul 
court  held  that  this  action  was  not  a  violation  of  the  plaintiffs  constitutional 
right  to  privacy  and  noted  that  the  privacy  claim  was  "far  afield"  from  the  line 
of  past  Supreme  Court  privacy  decisions  involving  "marriage,  procreation, 
contraception,  family  relationships  and  child  rearing  and  education."    And 
several  other  authors  have  suggested  that  the  "public  record"  nature  of  the 
arrest  information  in  Paul  was  a  critical  factor  limiting  the  application  of  any 
constitutional  right  to  privacy.15 

Subsequent  lower  court  decisions  have  generally  given  short  shrift  to 
constitutional  challenges  to  disclosure  of  criminal  convictions  and  pending 
criminal  charges  based  on  the  right  of  privacy.    Some  cases,  however,  suggest 
that  privacy  considerations  may  still  be  applicable  with  respect  to  acquittals, 
records  of  old  arrests  no  longer  pending,  records  of  arrests  made  without 
probable  cause,  or  records  otherwise  defective  (BJS,  November  1988a).    Thus, 
at  least  with  respect  to  disclosure  of  conviction  and  current,  pending  arrest 
information,  the  legal  literature  indicates  that  a  federal  constitutional  right  to 
privacy  is  not  implicated.    Protection  of  privacy  interests  has  largely  been 


42 


156 

left  to  those  state  constitutions  that  provide  a  right  to  privacy,  the  common  law 
action  of  invasion  of  privacy,  and  statutory  limitations  on  criminal  records 
based  on  public  policy  concerns  for  privacy.16 

Several  state  constitutions,  including  California,  expressly  provide  a 
right  to  privacy.    The  extent  to  which  the  state  constitutions  explicitly  or 
implicitly  protect  against  the  disclosure  of  criminal  history  information  in 
screening  persons  who  work  with  children  is  unclear  from  the  literature 
reviewed.    In  Florida,  persons  named  in  public  records  (such  as  criminal  arrest 
and  conviction  records)  have  not  been  found  to  have  a  state  right  to  privacy 
that  is  violated  by  the  release  of  public  records  (Rivas,  1992). 

Due  process  considerations  are  at  issue  in  the  use  of  criminal 
background  checks  because  a  person's  interest  in  earning  a  living  has  been 
included  in  the  concept  of  "liberty"  under  the  Constitution's  due  process 
clause.    However,  Davidson  et  al.  (1991)  note  that  in  DeVeau  v.  Braisted,  363 
U.S.  144  (1960),  the  court  held  that  employment  and  licensing  restrictions  do 
not  violate  the  due  process  clause  if  they  are  "reasonable  means  for  achieving 
a  legitimate  state  aim."    Since  protecting  children  from  abuse  outside  the  home 
has  been  found  to  be  a  legitimate  state  aim,17  the  inquiry  is  whether  the  use 
of  criminal  checks  is  a  reasonable  means  to  protect  children.    The  legal 
literature  analyzing  this  issue  is  limited.    It  is  clear,  however,  that 
reasonableness  under  the  due  process  clause  requires  the  inclusion  of  certain 
procedural  protections.   The  literature  describes  some  of  the  procedural 
safeguards  that  have  been  proposed  in  utilizing  criminal  record  checks. 

In  a  memorandum  regarding  the  DeConcini-Specter  Amendment,  Sen. 
Arlen  Specter  recommended  that  individuals  disqualified  from  employment  as 
a  result  of  their  criminal  history  be  notified  of  the  reasons  for  the 
disqualification  (including  information  on  the  procedures  to  challenge  or 
correct  inaccurate  information)  and  given  an  opportunity  to  be  heard  before  the 
state  agency  (Beaty  and  Woolley,  1985). 

The  SEARCH  Group's  1988  report  Standards  for  the  Security  and 
Privacy  of  Criminal  History  Record  Information,  which  sets  forth  national 
standards  for  handling  criminal  justice  information,  is  also  instructive. 
Standard  13.5  recommends  that  most  criminal  history  record  information  be 
publicly  available,  except  for  certain  nonconviction  information,  (including 
arrests  over  one  year  with  no  charges  actively  pending,  nolle  prosses,  and 
acquittals  and  dismissals),  which  is  to  be  disclosed  for  "private  noncriminal 
justice  purposes  as  authorized  by  state  statute."    Further,  this  nonconviction 
information  is  to  be  available  under  a  written  agreement  ensuring  that  "the 
information  is  used  only  for  the  purpose  for  which  it  was  disseminated,  is  not 
redisseminated,  and  is  maintained  in  a  manner  to  assure  the  security  of  the 
information  and  the  protection  of  the  privacy  interests  of  the  record  subjects." 


43 


157 


Statutory  and  Common  Law  Privacy  Claims 

Public  policy  concerns  with  privacy  (and  due  process)  form  the  basis 
for  statutory  provisions  governing  the  maintenance  and  dissemination  of 
criminal  record  information.    A  number  of  publications  by  the  Bureau  of 
Justice  Statistics  and  the  SEARCH  Group,  Inc.  discuss  the  statutory  and 
regulatory  provisions  governing  criminal  records.18  These  provisions  include 
limitations  on  access  to  criminal  record  information.    As  previously  noted, 
under  federal  law  a  private  entity  seeking  access  to  FBI  records  for 
employment  purposes  must  be  authorized  to  do  so  by  state  law  and  through  a 
state  intermediary.    In  addition,  the  Privacy  Act  of  1974,  5  U.S.C.  §552a, 
provides  a  number  of  safeguards  designed  to  protect  privacy  interests.    The 
Act  includes  procedures  for  individuals  to  access  and  amend  federal  agency 
files  with  information  about  themselves  and  permits  certain  civil  suits  if  the 
federal  agency  does  not  correct  inaccurate  data  (Firehock,  1992).    However, 
the  Act's  authorization  for  law  enforcement  agencies  to  exempt  themselves 
from  certain  duties  under  the  Act  has  limited  its  reach.    The  exemption  for  law 
enforcement-related  records  has  been  interpreted  to  include  recompilations  of 
such  records  for  non-law  enforcement  purposes  (ibid).    Thus,  the  Act  may  not 
be  applicable  to  criminal  records  used  for  the  screening  of  persons  working 
with  children. 

The  common  law  tort  action,  invasion  of  privacy,  may  also  be  the  basis 
for  liability  resulting  from  the  use  of  inaccurate  data.    As  initially  analyzed  by 
William  Prosser  (1960),  invasion  of  privacy  includes  four  distinct  types  of 
torts,  including  "public  disclosure  of  private  facts."    For  the  most  part,  the 
cases  involving  the  release  of  criminal  records  have  focused  on  this  type  of 
tort.    Drawing  on  the  analysis  in  Paul  v.  Davis  regarding  the  constitutionally- 
based  right  of  privacy,  some  courts  have  found  that  the  tort  of  invasion  of 
privacy  does  not  prevent  the  disclosure  of  criminal  justice  records  because 
arrests  and  convictions  are  public  facts.    Other  courts  have  balanced  the 
individual's  privacy  interests  against  the  public's  interest  in  having  the  records 
disclosed  (SEARCH  Group,  1984;  Turkington,  1990). 

Employment  Law  Issues 

Employers  in  a  number  of  business  areas  are  increasingly  using  detailed 
computer  databases  to  obtain  information  about  prospective  employees' 
criminal,  credit  or  workers  compensation  histories.    Some  individuals  have 
claimed  that  the  practice  of  using  criminal  history  information  is 
discriminatory  under  Title  VII  of  the  Civil  Rights  Act  of  1964,  and  have 
challenged  hiring  and  firing  decisions  based  on  criminal  records  because  they 
have  a  disproportionate  impact  on  the  employment  opportunities  of  minorities. 
In  certain  employment  contexts  not  involving  children,  these  challenges  have 
been  successful.    (Frank,  1992;  Frierson,  1988a)   However,  if  an  employer 


44 


158 


can  show  that  criminal  background  checks  are  a  "business  necessity,"  checking 
arrest  records  or  other  criminal  information  will  not  be  considered  unlawful 
discrimination  within  the  meaning  of  Title  VII.    In  deciding  whether  a  practice 
is  a  business  necessity,  courts  make  a  determination  as  to  whether  the  practice 
is  "related  to  job  performance"  [Davidson  et  al.,  1991  citing  Griggs  v.  Duke 
Power  Co.,  401  U.S.  424  (1971)]. 

The  literature  to  date  does  not  specify  whether  any  court  has  expressly 
ruled  that  the  use  of  criminal  information  to  screen  people  who  work  with 
children  does  not  violate  Title  VII.19   However,  as  the  ABA  Center  on 
Children  and  the  Law  has  noted,  "[i]n  light  of  the  recent  increase  in  out-of- 
home  child  abuse,  child-serving  organizations  ...  are  very  likely  to  have  what 
courts  would  consider  a  'business  necessity'  to  check  arrest  records  of 
prospective  and  current  employees"  (Davidson  et  al.,  1991).    Others  argue  that 
only  conviction  information  should  be  used,  asserting  that  the  use  of  arrests 
without  convictions  violates  Title  VII.20 

Moreover,  in  deciding  the  effect  of  an  existing  conviction  (or  arrest,  if 
such  information  is  to  be  used),  courts  have  determined  that  "any  test  used  [to 
hire  or  retain  employees]  must  measure  the  person  for  the  job  and  not  the 
person  in  the  abstract."    Thus,  a  criminal  record  generally  may  not  absolutely 
bar  employment,  but  may  be  a  consideration  in  the  decision  to  hire  or  retain 
an  employee  (Davidson  et  al.,  1991).    The  practice  of  rejecting  all  those  with 
criminal  convictions  was  struck  down  in  a  case  that  did  not  involve  care, 
service  or  treatment  of  children,  with  the  court  noting  that  such  practices  will 
not  be  upheld  unless  there  is  a  specific  business  or  statutory'  justification 
(Schreiber,  1980).    Again,  whether  child-serving  organizations  have  a  business 
justification  for  rejecting  an  applicant  simply  based  on  a  criminal  record,  is 
unclear  from  the  legal  literature  reviewed. 

The  states  also  have  equal  employment  opportunity  statutes  similar  to 
the  federal  Title  VII.    Consequently,  a  prospective  employee  may  challenge  a 
hiring  decision  based  on  state  rather  than  federal  fair  employment  law 
(Murray,  1986).    Further,  in  some  states,  requesting  arrest  information  on  a 
job  application  generally  violates  the  state  equal  employment  opportunity  laws, 
although  positions  involving  work  with  children  may  be  excepted  (Hahn, 
1991). 

Negligent  Hiring  and  Negligent  Supervision 

Analysis  of  negligent  hiring  and  negligent  supervision  historically 
stemmed  from  a  "respondeat  superior"  theory  under  which  acts  falling  outside 
the  scope  of  employment  do  not  subject  an  employer  to  liability.    Since 
criminal  acts  tend  to  fall  outside  the  scope  of  employment,  employers 


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generally  have  not  been  held  liable  for  child  abuse  perpetrated  by  their 
employees  under  a  respondeat  superior  theory. 

In  recent  years,  however,  challenges  utilizing  "negligent  hire"  or 
"negligent  supervision"  theories  have  met  with  some  success.    An  employer 
customarily  has  a  duty  to  use  "reasonable  care"  in  hiring  and  retaining 
employees  who  are  competent  and  fit  for  their  positions.    In  deciding  whether 
the  exercise  of  reasonable  care  in  hiring  may  include  reviewing  a  prospective 
hire's  criminal  background,  a  court  will  look  at  all  the  circumstances 
surrounding  the  hiring,  including  whether  an  employee  is  being  hired  for  a 
sensitive  occupation  (Davidson  et  al.,  1991). 

The  legal  literature  does  not  indicate  whether  the  courts  have  expressly 
decided  whether  the  sensitive  nature  of  work  conducted  by  child  care  and 
youth-serving  organizations  requires  criminal  record  checks  of  employees. 
Liability  is  often  predicated  on  the  broader  finding  that  an  employer  hired  a 
person  without  an  adequate  background  investigation  which  would  have 
indicated  that  the  plaintiff  child  was  at  risk  (Bates,  July  1990).    Davidson  and 
colleagues  (1991)  discuss  Infant  C.  v.  Boy  Scouts  of  America,  391  S.E.  2d  322 
(Va.  1990),  a  case  in  which  the  local  Boy  Scouts  branch  was  found  liable 
when  a  volunteer  scoutmaster  with  a  criminal  record  for  sexually  assaulting 
scouts  in  another  state  allegedly  molested  the  child  plaintiff.    The  court 
dismissed  the  claims  against  the  national  Boy  Scouts  organization  based  on  a 
finding  that  the  national  organization  did  not  participate  in  selecting  or 
retaining  the  scoutmaster. 

Under  a  "negligent  supervision"  theory,  an  employer  may  be  liable  for 
harm  that  could  have  been  prevented  by  proper  supervision  of  the  employee  or 
volunteer.    Fossey  (1986)  refers  to  one  case,  Collins  v.  School  Board  of 
Broward  County,  All  So.  2d  560  (Fla.  Ct.  App.  1985),  in  which  the  court 
held  that  a  school  district  could  be  liable  for  a  sexual  assault  on  a  student  in  an 
improperly  supervised  shop  class.    Although  that  particular  case  involved  a 
student  assaulting  a  student,  the  court's  reasoning  —  that  the  assault  could  have 
been  prevented  by  proper  supervision  —  is  equally  applicable  to  employee  or 
volunteer  assaults.    However,  the  fact  that  an  abusive  act  takes  place  while  a 
child  is  in  an  employer's  care,  does  not  necessarily  result  in  liability.    In  Peck 
v.  Siau,  827  P.2d  1108  (Wash.  Ct.  App.  1992),  a  high  school  librarian  and  a 
student  had  sexual  contact  and  the  school  district  was  sued  based  on  negligent 
hiring  and  supervision.    The  court  did  not  find  the  school  district  liable,  noting 
the  absence  of  actual  or  imputed  knowledge  that  the  librarian  would  endanger 
students.    And  the  teacher  to  whom  allegations  of  the  librarian's  misconduct 
were  made  was  also  not  found  liable  since  the  teacher  had  no  supervisory 
responsibilities  (ABA  Juvenile  &  Child  Welfare  Law  Reporter,  1992,  11:84). 


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Lawsuits  have  also  been  brought  in  federal  court  by  persons  seeking 
damages  against  state  officials  for  harms  to  children  under  a  variety  of 
circumstances  (Guggenheim,  199121).    The  Civil  Rights  Act,  42  U.S.C. 
section  1983  permits  suits  against  officials  acting  under  color  of  state  law  who 
have  deprived  persons  of  federal  rights.    The  circumstances  under  which 
section  1983  can  successfully  be  used  to  find  liability  for  inadequate  screening 
in  the  hiring  or  supervision  of  an  abusive  employee  or  volunteer  is  unclear 
from  the  literature.    In  Daniels  v.  Williams,  474  U.S.  327  (1986),  and 
Davidson  v.  Cannon,  474  U.S.  344  (1986),  the  Supreme  Court  held  that 
negligence  cannot  be  the  basis  for  liability  under  the  Civil  Rights  Act. 
However,  since  those  cases  involved  single,  random  instances  of  negligence,  to 
the  extent  that  the  failure  to  adequately  provide  supervision  constitutes 
"deliberate  indifference"  rather  than  mere  negligence,  there  may  be  grounds 
for  liability  (Soler  et  al.,  1991). 

The  Use  of  Inaccurate  Data:  Defamation  and  Negligence  Claims 

The  extent  to  which  the  state  or  private  employers  can  be  held  liable 
for  the  use  of  inaccurate  data  rests  on  the  application  of  several  ton  law 
theories,  primarily  defamation  and  negligence.    An  April  1984  report  by  the 
SEARCH  Group,  Liability  for  Mishandling  Criminal  Records,  contains  a 
useful  discussion  of  the  application  of  these  theories  to  the  use  of  inaccurate 
criminal  records,  particularly  with  respect  to  the  liability  of  state  agencies.22 
Defamation,  which  includes  the  common  law  actions  of  libel  (written  or 
printed  statements)  and  slander  (oral  statements),  can  arise  when  inaccurate 
criminal  records  are  disseminated  without  having  made  reasonable  efforts  to 
ensure  accuracy.    Generally,  plaintiffs  suing  criminal  justice  agency  officials 
on  this  theory  will  be  hindered  by  the  necessity  of  proving  that  the  official 
releasing  the  information  was  motivated  by  ill  will  or  lacked  reasonable 
grounds  for  believing  that  the  information  was  accurate. 

A  negligence  theory  is  less  onerous  for  plaintiffs.    Liability  can  result 
from  the  "dissemination  of  erroneous  information,  failing  to  exercise  due  care 
in  employing  and  supervising  record  personnel  or  possibly  from  merely 
maintaining  inaccurate  records.    Numerous  courts  have  said  that  criminal 
justice  agencies  do  have  a  duty  to  exercise  reasonable  care  to  insure  that  their 
records  are  complete  and  accurate  and  to  prevent  dissemination  of  inaccurate 
records"  (SEARCH  Group,  April  1984). 

H.     Unanswered  Questions,  Unresolved  Issues 

While  deliberating  the  advantages  and  disadvantages  of  criminal  record 
checks,  earnest  consideration  must  be  given  to  some  principal  issues  which  are 
still  in  dispute.    Resolving  the  issues  outlined  below  is  paramount  to 
conducting  criminal  record  checks  in  a  productive  and  equitable  manner: 


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What  information  should  be  kept  in  criminal  record  repositories  and 
how  much  of  it  should  be  disseminated? 

What  categories  and  types  of  offenses  are  to  be  used  in  deciding 
employment  or  volunteer  placement  decisions;  which  of  these  will  be 
mandatory  disqualifying  criteria,  which  will  be  discretionary? 

Who  within  the  organization  receives  the  information  and  is  responsible 
for  the  final  decision?23 

How  and  when  is  the  applicant  notified  and  given  an  opportunity  to 
refute  the  record? 

What  is  the  applicant's  employment/volunteer  status  pending  the 
outcome  of  the  check? 

What  provisions  are  made  for  identifying  and  verifying  the  person  to 
receive  the  information  and  for  ensuring  that  the  information  remains 
confidential? 

What  types  of  employees  and  volunteers  should  be  subject  to  screening? 
And  how  often;  at  initial  hire/placement  only  or  periodically? 

Given  the  differences  in  state  laws  authorizing  or  permitting  criminal 
record  checks,  is  there  a  standard  protocol  than  can  be  followed? 

Who  will  pay  for  the  costs  associated  with  criminal  background  checks? 

What  is  the  outcome  of  an  applicant's  refusal  to  submit  to  background 
screening,  including  a  criminal  record  check  and/or  an  organization's 
noncompliance  with  background  screening  requirements? 

►       What  is  the  applicant's  hiring  or  placement  status  pending  any 

challenge  to  the  accuracy  of  the  criminal  history  information  received? 

Once  these  fundamental  questions  are  dealt  with,  there  are  additional 
considerations  regarding  the  actual  review  of  criminal  history  information  once 
an  organization  has  obtained  the  applicant's  record: 

/      Nature,  severity,  number  and  consequences  of  incidents  disclosed. 

/      Age  of  individual  at  time  of  incident. 

/      Amount  of  time  that  has  passed  since  event  occurred. 


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/      Circumstances  surrounding  each  matter,  including  contributing  societal 
or  environmental  conditions. 

/      Relationship  between  the  incident  and  the  type  of  employment  or 
service  that  applicant  will  provide. 

•      Applicant's  employment  or  voluntary  history  before  and  after  the 
matter. 

/      Applicant  efforts  and  success  at  rehabilitation. 

S      Likelihood  that  the  matter  would  prevent  the  applicant  from  performing 
his/her  responsibilities  in  a  manner  consistent  with  the  safety  and 
welfare  of  the  children  served  by  the  agency. 

/      Circumstances  and/or  factors  indicating  that  the  crime  is  likely  to  be 
repeated. 


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VI.    OTHER  SCREENING  MECHANISMS 

Legislators  and  the  general  public  are  strongly  cautioned  against 
presuming  that  mandated  criminal  record  checks  are  the  end-all-be-all  answer 
to  fighting  child  abuse.  If  this  misbelief  takes  root,  support  for  other  equally 
or  more  important  measures  may  fail.  The  overriding  sentiment  is  that 
criminal  record  checks  are  only  a  small  part  of  an  overall  solution  and  unless 
they  are  done  in  conjunction  with  other  screening  measures,  the  money  might 
be  better  spent  on  alternative  prevention  strategies.24 

By  relying  on  the  use  of  criminal  records,  organizations  may  overlook 
other  questionable  behaviors  --  including  substance  abuse,  mental  illness, 
emotional  problems,  sexual  difficulties,  poor  judgment  and  insensitivity  to  and 
punitiveness  towards  children  -  that  may  indicate  an  individual's  unsuitability 
to  work  with  or  around  children.    Finkelhor  and  Williams  (1988)  found  that 
half  of  all  child  sexual  abuse  perpetrators  had  some  prior  social  problem,  such 
as  substance  abuse  or  a  psychiatric  malady. 

There  are  a  multitude  of  other  screening  methods  that  child-  and  youth- 
serving  organizations  can  employ,  ranging  from  standard  interviewing  and 
reference  checking  to  more  complex  and  controversial  procedures  such  as 
screening  against  child  abuse  and  sex  offender  registries,  psychological  testing, 
drug  testing,  and  home  visits. 

A.     Screening  Against  State  Central  Child  Abuse  Registries 

State  central  child  abuse  registries  have  become  more  popular  in  recent 
years.    These  registries  essentially  consist  of  information  from  child  abuse  and 
neglect  reports.    Some  of  the  same  criticisms,  doubts  and  legal  issues  that 
plague  criminal  history  record  checks  have  been  raised  with  screening  potential 
employees  and  volunteers  against  state  child  abuse  registries.    Similar  to  the 
plight  of  criminal  justice  information  systems,  state  child  abuse  registries  were 
not  developed  for  employment  and  licensing  screening  purposes.  ■  instead, 
child  abuse  registries  were  developed  to  help  investigate  and  track  child 
protection  cases  and  improve  the  provision  of  child  welfare  services;  the  focus 
was  almost  exclusively  on  intrafamilial  cases  with  the  goal  of  family 
preservation/reunification  when  in  the  best  interests  of  the  child. 

The  use  of  the  child  abuse  registry  as  a  screening  device  for  child  care 
and  youth-service  workers  grew  out  of  the  same  helplessness  and  frustration 
that  induced  organizations  to  access  applicants'  criminal  records.    However, 
unlike  criminal  history  records  or  sex  offender  registries,  which  are  typically 
maintained  by  law  enforcement  authorities,  state  child  abuse  registry 
information  is  managed  by  the  state  social  services  agency  responsible  for 
child  protective  services.    Moreover,  unlike  conviction  information,  which  has 


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passed  the  standard  of  proof  beyond  a  reasonable  doubt,  child  abuse  registry 
information  has  not  been  subject  to  such  a  test,  compounding  the  problems  of 
inaccurate  and  incomplete  data  that  beset  many  state  child  abuse  registries. 

A  report  from  the  California  Children's  Council  denounced  the  growing 
use  of  its  state  child  abuse  registry  for  screening  purposes,  stating  that  "As  a 
result  of  this  rush  to  legislate,  ...  not  much  attention  has  been  focused  on  the 
use  or  misuse  or  the  screening  and  recordkeeping  processes.  ..."    The  report 
estimated  that  65  percent  of  all  child  abuse  allegations  must  be  dismissed  after 
an  investigation  (for  a  variety  of  reasons)  and  the  overwhelming  number  of 
false  reports  makes  registry  accuracy  "incomprehensible"  (Sale  et  al.,  1988). 
Due  to  the  haphazard  nature  in  which  screening  against  child  abuse  registries 
originated,  and  the  lack  of  uniformity  in  state  statutes  requiring  such 
screening,  there  is  a  need  for  well-defined  criteria  and  procedural  safeguards 
to  ensure  proper  maintenance  and  use  of  registry  information.25    Cohen 
(1985b)  outlined  some  additional  misgivings  about  the  growing  use  of  state 
child  abuse  registries  for  screening  purposes: 

►  Many  child  abuse  registries  are  indexed  by  child  subject,  not  alleged 
perpetrator; 

►  Definitions  of  reportable  child  abuse  vary  across  states  and 
classifications  and  terms  are  not  uniform;  and 

►  Registry  classifications  are  generally  too  broad  and  all-encompassing  to 
be  used  appropriately  for  screening. 

Use  of  State  Child  Abuse  Registries  for  Screening  Purposes 

Several  studies  document  the  extent  to  which  screening  potential  child 
care  and  youth-service  workers  against  state  child  abuse  registries  occurs, 
although  it  appears  to  be  predominantly  child  care  workers  who  are  subject  to 
this  practice.    According  to  Hayes  and  her  colleagues  (1990),  approximately 
38  percent  of  the  states  conduct  child  abuse  registry  checks  for  family  day  ca;e 
staff;  about  one-third  do  child  abuse  registry  checks  on  center  care  staff;  and 
one-third  conduct  child  abuse  registry  checks  for  both  family  and  center  care 
providers. 

The  National  Center  for  State  Courts  (1988)  indicated  that  68  percent 
of  responding  states  use  the  central  child  abuse  registry  to  screen  applicants  for 
day  care,  foster  care  and  adoption;  over  half  (56  percent)  use  the  registry  to 
track  known  abusers  between  jurisdictions  (47).    While  screening  in  some 
states  is  limited  to  adoption,  foster  care  and  day  care  employees,  others  screen 
babysitters,  camp  counselors,  child  protective  services  (CPS)  social  workers, 
and  volunteers  who  work  with  children.     Figures  D  and  E  below  represent  a 
breakdown  of  child  abuse  registry  screening  activities  for  45  states. 


51 


165 


Figure  D:  SCREENING  AGAINST  STATE  CHILD  ABUSE  REGISTRIES 

Breakdown  of  Activities  of  45  States 


40 


36* 


Foster  core    AOoptive  oorente  COy  care  nirino  Ooy  core  licenses 


Figure  E:  SCREENING  AGAINST  STATE  CHILD  ABUSE  REGISTRIES 
Breakdown  of  Activities  of  45  States 


4S 


40 


30 


25 


27* 


Source:  National  Center  for  Slale  Courts.  1988 


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166 


Presented  below  is  a  synopsis  of  several  states'  policies  regarding  the 
use  of  child  abuse  registries  for  screening  (as  conveyed  by  the  National  Center 
for  State  Courts,  1988),  to  help  give  readers  an  idea  of  the  different  state 
procedures: 

■  Connecticut  screens  adoption  and  foster  care  applicants  against  family  and 
individual  files  only;  there  are  no  perpetrator  tiles.    For  day  care  applicants, 

"the  registry  will  provide  information  on  when  the  person  appeared  in  the 
records;  die  reason  for  referral;  and  the  suspected  perpetrator.   All  household 
members  over  16  are  checked  and  must  sign  a  release. 

■  Florida  screens  adoption  applicants  and  employees/volunteers  seeking  work 
with  children.   In  1985,  legislation  was  passed  calling  for  closer  screening  of 
those  providing  out-of-home  care  or  persons  working  with  children  in  shelters, 
foster  care  programs,  drug  and  mental  health  programs,  day  care  and  other 
residential  or  non-residential  licensed  or  registered  programs.    Applicants 
must  consent  to  a  search  and  the  registry  provides  the  following  information: 
search  results,  date  of  report,  and  procedure  for  inspecting  court  records  if 
judicial  determination  of  abuse  was  made.    No  fee  is  charged  for  confirmed 
reports. 

■  New  Hampshire  screens  day  care  and  foster  care  staff  and  prospective 
adoptive  parents.   In  1986,  the  registry  received  over  5,300  requests  from  the 
Bureau  of  Child  Care  Standards  of  Licensing,  over  980  requests  from  District 
offices,  about  520  from  other  licensing  agencies,  and  over  60  each  of  out-of- 
state  and  adoption  searches.   Disclosure  is  limited  to  designated  District  Office 
Supervisors,  Bureau  Administrators  and  other  designated  State  Office 
personnel. 

■  Pennsylvania  requires  child  care  services  employees  to  certify  whether  they 
have  or  have  not  been  named  as  a  perpetrator  in  a  founded  report;  applicants 
cannot  be  hired  if  named  in  a  founded  report  in  the  last  5  years.    In  1986, 
Pennsylvania  processed  close  to  46,000  requests,  about  97.5  percent  of  which 
were  potential  child  care  services  employees  and  2.5  percent  seeking  voluntary 
certification. 

■  Utah  screens  prospective  foster  care  providers,  adoptive  parents,  and 
unlicensed  day  care  providers.   Department  of  Social  Services  employees  are 
exempt  from  screening.    "The  perception  of  registry  personnel  is  that  'hits' 
are  important  when  they  occur  but  are  relatively  rare. "   The  state  gets  about 
213  calls  per  month  from  other  states  requesting  information  on  suspected 
perpetrators. 

Though  individual  states  have  a  significant  amount  of  autonomy  in 
governing  how  their  child  abuse  registries  operate,  not  all  states  are  satisfied 
with  how  the  registry  is  currently  managed.    Figure  F  on  the  following  page 
displays  how  45  responding  states  judged  their  own  child  abuse  registries. 
Only  one-fifth  of  the  states  (9)  reported  an  overall  self-evaluation  of  "very 


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167 


good"  for  their  registry;  over  one-third  (17)  classified  their  registry  as  "good"; 
14  as  "fair";  and  5  as  "poor." 

Figure  F:   SELF  EVALUATION  OF  CENTRAL  CHILD  ABUSE  REGISTRY 

Responses  or  45  States 


Good   C20    0» 


F«lr    C3^    OSO 


Source:    National  Center  for  Slate  Courts,  1988 


Likelihood  of  Identifying  Potential  Offenders  via  State  Child  Abuse  Registries 

Given  the  slight  chance  that  a  potentially  abusive  individual  will  have  a 
criminal  record  on  file  in  either  a  state  or  national  criminal  history  repository, 
child-  and  youth-serving  organizations  may  resort  to  screening  against  a  state's 
central  child  abuse  registry  for  better  odds.    Unfortunately,  there  is  evidence 
that  screening  via  child  abuse  registry  checks  may  be  just  as  ineffective  as 
criminal  record  checks  in  revealing  potentially  abusive  child  care  and  youth- 
service  workers. 

In  New  York  State,  for  example,  Governor  Mario  Cuomo  recently 
sought  to  rescind  the  state's  1984  law  requiring  screening  of  prospective  child 
care  workers  against  the  state  child  abuse  registry  to  save  $1  million.    Such 
action  was  prompted  by  findings  that  the  screening  process  has  proved 
"inefficient  and  ineffective,"  and  provided  minimal  return  for  the  money. 
According  to  the  State  Social  Services  Department,  less  than  1  percent  of  the 
103,831  people  screened  in  fiscal  year  1990  had  been  accused  of  child  abuse 
and/or  neglect  (The  New  York  Times,  March  12,  1993).    As  indicated  in  the 
additional  examples  below,  the  literature  reveals  that  the  identification  or  "hit" 
rate  using  child  abuse  registries  ranges  from  less  than  1  percent  to  only  about 
2  percent  (DHHS,  1985;  National  Center  for  State  Courts,  1988): 


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•  Florida  estimates  that  out  of  about  200.000  requests,  only  189  result  in  a  hit 
(.09  percent). 

•  Of  the  close  to  46.000  requests  Pennsylvania  processed  in  1986.  only  146  (.3 
percent)  had  a  record  in  a  founded  or  indicated  report:  69  percent  for  physical 
abuse;  16  percent  for  sexual  abuse;  14  percent  for  neglect;  and  2  percent  for 
emotional  abuse. 

•  Of  the  14,000  -  15.000  searches  a  year  conducted  by  Virginia  for  persons 
providing  child  care  services,  about  2  of  every  500  (.4  percent)  result  in  a  hit. 

•  Screening  of  366  applicants  in  New  Hampshire  yielded  167  possible  matches, 
of  which  only  9  (about  2  percent)  were  actual  hits. 

•  Connecticut  estimates  that  20  to  25  percent  of  the  names  checked  are  found  in 
the  database,  however  it  is  not  known  how  many  of  these  are  actual 
perpetrators  since  the  registry  lists  non-perpetrators  as  well. 

•  Since  Illinois  began  screening  foster  home  and  day  care  center  staff  in  1982, 
650  matches  have  been  identified;  since  screening  of  staff  in  licensed  facilities 
began  in  1986.  228  hits  have  resulted  --  the  total  number  screened  is  not 
indicated. 

As  an  alternative  to  screening  against  state  child  abuse  registries, 
Cohen  (1985b)  suggests  that  organizations  consider  (1)  requiring  applicants  to 
sign  a  declaration  under  penalty  of  perjury  that  they  have  not  committed  (or 
been  convicted  of)  specified  crimes;  (2)  disapproving  persons  who  as 
parents/guardians  have  had  their  parental  rights  terminated  or  whose  children 
have  been  deemed  dependents  of  the  state:  (3)  mandating  checks  of  any 
previous  denials,  revocations  or  refusals  to  renew  applicable  licenses;  (4) 
verifying  an  applicant's  educational  credentials  and  employment  history;  (5) 
relying  on  character/  employment  references,  not  friends  or  relatives;  and  (6) 
instituting  a  probationary  hiring  period. 

B.     Screening  Against  State  Sex  Offender  Registries 

Maintaining  a  registry  of  convicted  sex  offenders,  particularly  child  sex 
offenders,  against  which  child  care  and  youth-service  workers  can  be  screened 
is  yet  another  protective  option  that  many  states  have  adopted  or  are  exploring. 
Proponents  of  sex  offender  registries  maintain  that  because  sex  offenders  pose 
a  high  risk  of  reoffending  after  release  from  custody,  their  mobility  must  be 
monitored.    Supporters  of  mandatory  registration  further  argue  that  ensuring 
the  public's  safety  takes  precedence  over  the  privacy  rights  of  a  convicted  sex 
offender.    Although  Congress  has  considered  legislation  to  encourage  states  to 
establish  a  sex  offender  registration  process  and  central  location  for 
information  collection,  no  such  legislation  has  passed.    Less  than  half  of  the 
states  (21)  have  registration  requirements  for  sex  offenders;  however,  in  1987, 

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only  8  states  had  such  a  requirement.    This  inclination  for  states  to  track  sex 
offenders  is  still  on  the  rise;  at  least  12  states  have  introduced  or  drafted 
legislation  addressing  this  issue.26 

For  those  states  that  have  implemented  sex  offender  registries, 
problems  seem  evident,  particularly  when  it  comes  to  enforcing  required 
registration.    For  example,  as  shown  in  Figure  G,  Texas  has  more  than  3,000 
sex  offenders  on  parole,  but  only  about  1,800  offenders  (60  percent)  are 
registered  (Office  of  Attorney  General,  personal  correspondence,  1993). 
California  estimates  its  compliance  rate  to  be  from  72  to  89  percent,  while 
Washington  State  revealed  a  compliance  rate  of  81  percent  as  of  November 
1992,  up  from  76  percent  and  57  percent  in  November  1991  and  1990 
respectively  (Lewis,  1988;  Washington  State  Institute  for  Public  Policy,  1992). 
More  often  than  not,  the  burden  of  registration  falls  upon  the  individual 
offender,  not  the  institution  from  which  he/she  was  released  or  the  legal  entity 
which  rendered  the  offender  guilty  of  a  sex  crime.    And  while  penalties  may 
be  enacted  for  failure  to  register,  the  ability  to  enforce  compliance  is  lacking. 

Figure  G:    COMPLIANCE  WITH  SEX  OFFENDER  REGISTRATION 

Selected  States 


Ca I  if ornia* 


Washington 


*  California  reported  72%  and  89%  for  two  different  groups  released  from  prison  in  1981. 
Sources:  Lewis,  1988;  Office  of  Attorney  General,  Texas,  persona]  correspondence,  March  1993; 
Washington  State  Institute  for  Public  Policy,  1992 

States  also  do  not  agree  on  who  should  be  required  to  register  —  adult 
and  juvenile  offenders,  first  or  "habitual"  (i.e.,  repeat)  offenders  —  and  for 
how  long  offender  information  should  be  kept  on  record.    For  example, 


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Arizona  and  California  require  lifetime  registration  of  sex  offenders,  while 
New  Hampshire  and  Washington  State  only  require  lifetime  registration  of 
some  offenders  and  10-  or  15-year  registration  for  others.    Most  states' 
registration  requirements  range  from  10  to  20  years,  but  many  will  lessen  the 
term  if  the  court  declares  the  offender  "rehabilitated." 

California  and  Washington  are  two  states  requiring  juveniles  to  register, 
although  California  rescinds  the  requirement  once  the  offender  reaches  age  25. 
Similarly,  Texas  registers  a  juvenile  if  he/she  is  committed  to  the  Texas  Youth 
Commission,  but  removes  the  name  once  the  individual  turns  21.    Given  the 
high  incidence  of  abuse  by  juveniles  and  the  recidivistic  nature  of  child  abuse, 
lifetime  registration  of  both  adults  and  juveniles  may  be  warranted.    The 
National  Center  for  Missing  and  Exploited  Children  (1992),  however, 
recommends  in  its  model  state  legislation  that  only  adult  sex  offenders  be 
registered. 

As  with  criminal  history  information  systems  and  state  child  abuse 
central  registries,  there  are  many  issues  to  untangle.    In  fact,  Tennessee's 
General  Assembly  suspended  implementation  of  the  state's  sex  offender 
registry  to  screen  child  care  providers  until  July  1993  to  enable  further  review. 
A  1988  report  on  the  effectiveness  of  California's  sex  offender  registration 
requirements  identified  several  major  problem  areas:    (1)  lack  of  time  and 
manpower  at  the  local  agency  level,  (2)  lack  of  a  statewide  automated  sex 
registration  system  and  up-to-date  information,  (3)  lack  of  knowledge  or 
cooperation  by  the  offender  to  provide  necessary  registration  information,  (4) 
lack  of  staff  training  and  familiarity  with  the  registration  system,  (5)  lack  of 
punishment  for  sex  registration  violators,  and  (6)  lack  of  information  sharing 
among  criminal  justice  agencies  (Lewis,  1988). 

Primary  recommendations  outlined  in  the  National  Center  for  Missing 
and  Exploited  Children's  (NCMEC)  proposed  model  state  legislation  include: 

Require  lifetime  registration. 

Require  registration  for  both  felony  and  misdemeanor  convictions  for 
relevant  crimes. 

Require  sex  offenders  to  appear  in  person  to  register. 

Require  regular  verification  of  an  offender's  address,  at  least  annually. 

Require  registration  within  10  days  of  assuming  a  new  residence. 

Establish  penalties  for  failure  to  comply  with  registration 
requirements. 

Allow  information  to  be  accessed  only  by  law  enforcement  or 
authorized  persons. 

Require  local  law  enforcement  to  relay  information  to  state  criminal 
history  repositories. 


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The  last  two  NCMEC  recommendations  regarding  access  and 
availability  of  information  are  particularly  important  and  warrant  elaboration. 
Overwhelmingly,  the  states  that  have  established  sex  offender  registries  limit 
their  use  to  law  enforcement  purposes  and  do  not  allow  other  organizations  or 
individuals  to  request  the  information  for  employment  or  licensing  purposes. 
Two  notable  exceptions  are  (1)  Illinois,  which  allows  the  Department  of 
Children  and  Family  Services  access  for  background  investigations,  and  (2) 
Oregon,  which  allows  the  Department  of  Human  Resources  access  and  also 
notifies  the  Teacher  Standards  and  Practices  Commission  if  the  offender  is  a 
teacher  or  administrator. 

C.     National  Practitioner  Data  Bank 

The  National  Practitioner  Data  Bank,  which  is  a  national  system 
enabling  hospital  and  other  health  care  entities  to  check  on  the  status  of  a 
physician's  license  and  whether  a  physician  is  or  has  been  the  subject  of 
disciplinary  actions,  may  be  a  useful  model  in  developing  a  national 
background  check  system  for  persons  working  with  children. 

In  an  effort  to  crack  down  on  the  ability  of  incompetent  or 
unprofessional  physicians  to  flee  their  current  locale  and  set  up  new  practices 
in  different  hospitals  or  states,  Congress  passed  the  "Health  Care  Quality 
Improvement  Act  of  1986,"  Public  Law  99-660.   Title  IV,  Section  402  of  this 
law  ("Encouraging  Good  Faith  Professional  Review  Activities")  requires  the 
reporting  of  information  to  a  central  source  when  a  physician's  license  is 
revoked  or  suspended,  or  if  the  physician  is  censured,  reprimanded  or  placed 
on  probation.    Congress'  goal  was  to  develop  a  comprehensive  national 
reporting  system  to  follow  unfit  doctors  from  place  to  place.    Congress 
claimed  that  the  establishment  of  such  a  data  bank  was  necessary  since  state 
disciplinary  review  boards  and  existing  peer  review  systems  failed  to 
adequately  identify  incapable  practitioners. 

The  Department  of  Health  and  Human  Services'  (DHHS)  Bureau  of 
Health  Professions  garnered  responsibility  for  implementation  of  such  a  data 
system  and  effective  January  1989,  DHHS  awarded  Unisys  Corporation  a  5- 
year,  $15.9  million  contract  to  develop  and  operate  the  National  Practitioner 
Data  Bank.    (According  to  the  Legislative  History  of  P.L.  99-660,  the 
Congressional  Budget  Office  estimated  that  if  DHHS  maintained  the 
clearinghouse,  costs  to  the  federal  government  would  run  $30  million  in  the 
first  fiscal  year  and  $10  million  in  each  fiscal  year  thereafter.) 

Similar  to  legislative  efforts  calling  for  mandated  criminal  record 
checks  of  potential  child  care  and  youth-service  workers,  P.L.  99-660 
stipulates  that  hospitals  and  health  care  entities  must  obtain  information  from 
the  data  bank  prior  to  hiring  a  physician  and  once  every  two  years  for  existing 


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medical  staff.    Those  hospitals  and  other  medical  care  facilities  which  fail  to 
consult  the  data  bank  can  find  themselves  liable  if  the  physician  is  later  sued 
for  medical  malpractice.    Civil  penalties  of  up  to  $10,000  were  also  instituted 
to  help  protect  the  confidentiality  of  information.    It  should  be  noted,  however, 
that  DHHS  advises  health  care  entities  to  use  the  data  bank  with  discretion  as 
it  is  "primarily  a  flagging  system  whose  principal  purpose  is  to  facilitate  a 
more  comprehensive  review  of  professional  credentials.    Data  received.  .  . 
should  be  used  in  combination  with  other  sources  of  data  in  making 
determinations  on  granting  clinical  privileges  or  in  employment,  affiliation,  or 
licensure  decisions"  (DHHS,  1990b). 

The  legislative  history  leading  to  the  enactment  of  this  law  describes  a 
problem  not  unlike  what  happens  in  child  care  organizations  that  discover  an 
abusive  staff  member:    "[H]ospitals  too  often  accept  'voluntary'  resignations  of 
incompetent  doctors  in  return  for  the  hospital's  silence  about  the  reasons  for 
the  resignations"  (Legislative  History  to  P.L.  99-660,  1986).    To  ensure  that 
health  care  entities  and  physicians  won't  resort  to  "plea  bargains,"  P.L.  99-660 
also  requires  health  care  entities  to  report  cases  where  they  resolve  not  to 
conduct  an  investigation  if  a  physician  agrees  to  relinquish  his/her  clinical 
privileges. 

Clearly,  much  of  the  rationale  which  led  to  the  establishment  of  the 
National  Practitioner  Data  Bank  is  relevant  to  the  current  predicament  faced  by 
child-  and  youth-serving  organizations  aspiring  to  weed  out  potentially  abusive 
employees/volunteers  who  may  infiltrate  their  agency.    A  closer  look  at  the 
operation,  maintenance  and  effectiveness  of  the  data  bank  in  ensuring  quality 
health  care  would  be  valuable. 

D.   Teacher  Identification  Clearinghouse 

The  Teacher  Identification  Clearinghouse,  operated  by  the  National 
Association  of  State  Directors  of  Teacher  Education  and  Certification 
(NASDTEC),  is  a  nationwide  database  of  all  teachers  whose  certification  has 
been  denied,  revoked  or  suspended  over  the  past  15  years.    The  clearinghouse 
was  instituted  about  four  years  ago.  primarily  as  a  response  to  prevent  child 
abuse  in  the  schools.    Donald  Hair,  NASDTEC's  Executive  Director, 
estimates  that  about  70  percent  of  teacher  revocations  in  the  clearinghouse  are 
for  child  sexual  abuse.    He  indicated  that  broadening  the  scope  to  include 
information  on  all  school  employees  (e.g.,  bus  drivers,  custodians)  would  be 
even  more  beneficial.    The  clearinghouse  currently  does  not  disseminate 
information  to  outside  organizations,  mainly  because  of  legal  constraints,  but 
Hair  notes  this  is  an  area  worth  exploring  (personal  correspondence,  February 
5,  1993). 


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State  membership  to  the  Teacher  Identification  Clearinghouse  is 
voluntary.    Currently  all  states  except  Iowa  (which  is  in  the  process  of  joining) 
have  signed  clearinghouse  agreements;  this  is  a  noteworthy  increase  from  just 
eight  member  states  in  1988.   The  cost  of  joining  the  clearinghouse  is  included 
as  part  of  NASDTEC's  membership  fees,  and  each  month  NASDTEC  sends 
out  a  list  of  all  new  revocations  to  every  state;  a  complete  listing  is  provided 
quarterly.    Because  listings  do  not  include  specific  charges  associated  with  the 
revocation  or  denial,  states  are  directed  to  contact  their  respective  certification 
offices  if  they  require  more  information.    Hair  estimates  that  it  costs 
NASDTEC  about  $20,000  a  year  to  maintain  and  operate  the  clearinghouse. 

Both  the  National  Practitioner  Data  Bank  and  the  Teacher  Identification 
Clearinghouse  are  two  persuasive  examples  of  how  Congress  and  a  national 
professional  association,  respectively,  were  able  to  establish  fruitful  central 
information  systems  to  be  used  for  employment  and  licensing  screening 
purposes.    Legislators  and  advocates  embarking  on  further  efforts  to  develop 
such  an  information  system  for  child-  and  youth-serving  organizations  are  sure 
to  benefit  from  a  closer  examination  of  the  operation,  maintenance  and  costs  of 
these  two  existing  setups. 

E.     Application  Forms  and  Personal  Interviews 

Developing  a  comprehensive  written  application  and  supplementing  or 
clarifying  information  through  a  personal  interview(s)  can  provide  a 
tremendous  amount  of  knowledge  about  a  potential  employee/volunteer  and 
should  be  a  first  step  in  any  selection  or  hiring  process.    Disqualifying 
information  may  be  disclosed  in  these  early  stages,  precluding  the  need  to 
conduct  more  intensive  and  costly  background  screening.    However,  in  today's 
competitive  job  market,  there  is  growing  suspicion  about  how  forthright  an 
applicant's  answers  will  be  either  on  an  application  form  or  in  a  personal 
interview.    About  25  percent  of  resumes  contain  incorrect  or  exaggerated 
information,  ranging  from  inaccuracies  about  identities  and  educations  to 
falsifying  reasons  for  leaving  a  job  (Pankau,  1990).    And  in  answer  to  the 
question  "Does  anybody  really  admit  to  criminal  activity?"  a  1987  study  of 
225,000  job  applicants  showed  that  over  75  percent  made  no  admissions  of 
wrongdoing;  about  6  percent  admitted  involvement  in  theft  allegations  at  prior 
employment;  just  over  4  percent  admitted  committing  a  felony;  approximately 
6  percent  admitted  committing  minor  criminal  acts;  and  close  to  5  percent 
admitted  relatively  frequent  illegal  drug  use  on  company  premises.    These 
percentages  are  not  to  be  construed  as  actual  incidence  rates  (Sackett  et  al., 
1989). 

Keeping  in  mind  that  an  individual  may  fabricate  his/her  competence, 
but  being  careful  not  to  dismiss  the  importance  of  the  application  and  ensuing 
interview,  organizations  should  use  these  activities  as  a  backdrop  to  judging  a 


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potential  employee  or  volunteer's  overall  character.    The  application  form 
should  be  detailed  enough  to  give  more  than  a  cursory  overview  of  work  and 
educational  history.    Unexplained  gaps  in  employment,  declining  salary 
history,  unusual  lengths  of  military  service,  or  obvious  overqualifications 
should  raise  warning  flags.   The  application  also  should  include  a  specific 
question  regarding  convictions  and  any  allegations  of  child  or  sexual  abuse  and 
indicate  that  false  statements  are  grounds  for  immediate  dismissal.    Even  if  an 
applicant  lies,  such  directness  sends  a  message  about  the  agency's  position  on 
child  abuse.    In  addition,  if  contrary  information  is  later  discovered  through 
other  screening  procedures,  the  organization  (as  previously  stipulated)  has  the 
discretion  to  deny  the  applicant  the  position  solely  on  the  basis  that  he/she 
lied. 

In  their  survey  of  public  schools,  Titus  and  DeFrances  (1989)  found 
that  on  the  application  forms,  21  percent  of  the  schools  ask  about  other  names 
used  by  the  applicant,  16  percent  require  fingerprints,  11  percent  require 
signing  a  waiver  to  allow  review  of  state/  local  police  and  FBI  files  and  63 
percent  require  none  of  these.    In  determining  an  applicant's  eligibility: 

/  84%  ask  about  reasons  for  leaving  previous  employment 

/  46%  ask  about  revocation  or  denial  of  teaching  certificate 

/  34%  ask  about  convictions  or  guilty  pleas 

/  27%  ask  about  prior  arrests 

/  15%  ask  about  pending  charges 

/  7%  ask  about  acquittals 

•  78%  ask  what  the  specific  charges  were  in  cases  where  an 

applicant  mentions  a  criminal  charge 

/  1 1  %  ask  about  none  of  these 

Much  of  the  literature  indicates  that  the  personal  interview  is  by  far  one 
of  the  most  important  and  useful  screening  devices  in  selecting  staff. 
Organizations  are  advised  to  develop  a  standardized  interview  to  assure 
consistency  among  applicants  and  help  eliminate  any  subjectivity  associated 
with  using  multiple  interviewers.    A  team  approach  to  interviewing  and 
subsequent  hiring  decisions  is  also  recommended,  especially  for  larger 
organizations,  to  increase  objectivity  and  attain  different  perspectives. 

Interviewers  should  address  issues  such  as  an  applicant's  experiences 
with  children;  childhood  experiences  (especially  history  of  abuse);  child 
developmental  issues;  problem-solving  scenarios  and  proper  caregiver 
behavior;  and  perceptions  of  children  and  childhood  behavior.    The  use  of 
vignettes,  hypothetical  situations,  other  written  exercises  and  role  playing  are 
all  recommended.27 


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In  addition,  the  Colorado  Department  of  Social  Services  (1987) 
recommends  having  the  applicant  write  a  brief  autobiography,  inviting  him/her 
to  "share  anything  else  you  would  like  us  to  know  about  you."   The 
department  also  points  out  that  videotaping  the  interview,  with  the  applicant's 
consent,  saves  time  and  provides  a  permanent  record  of  exactly  what 
transpired.    Videotaping  not  only  provides  the  agency  with  a  standardized 
document  that  acts  as  a  future  safeguard,  but  may  also  deter  child  abusers 
from  applying,  knowing  that  any  misleading  or  false  information  will  be 
recorded  on  tape. 

Screening  Tool  Used  by  Big  Brothers/Big  Sisters  of  Greater  Lowell,  MA 

McCormack  and  Selvaggio  (1989)  developed  an  interview  screening 
device  specifically  for  the  Big  Brothers/Big  Sisters  of  Greater  Lowell 
(Massachusetts)  to  help  identify  sexual  offenders  who  seek  access  to  children 
through  youth-oriented  organizations.    The  authors'  goal  was  to  operationalize 
certain  characteristics  to  measure  the  presence  and  degree  of  a  given  attribute. 
They  caution,  however,  that  the  indicators  are  not  intended  to  "prove"  that  the 
potential  volunteer  is  a  pedophile,  but  instead  provide  enough  information  to 
help  alert  personnel  to  potentially  abusive  applicants.    McCormack  and 
Selvaggio  outline  the  following  10  personal  characteristics  which,  if  found 
together,  should  pique  concern  about  potential  volunteers: 

1.  Indicates  a  preference  for  a  child  of  a  specific  age. 

2.  Indicates  a  preference  for  a  child  who  has  a  history  of  abuse  and 
neglect. 

3.  Has  a  history  of  being  abused  as  a  child. 

4.  Had  little  social  contact  as  a  teenager. 

5.  Experienced  frequent  moves. 

6.  Has  been  overly  active  in  the  community  in  the  affairs  of 
children. 

7.  Has  friends  who  are  much  younger. 

8.  Refers  to  children  as  innocent  or  pure. 

9.  Has  many  hobbies  and  interests  that  are  appealing  to  children. 

10.  Is  undergoing  his/her  second  or  subsequent  match  with  a  child. 

Inclusion  of  the  last  variable  was  based  on  Wolffs  (1986)  finding  that 
almost  twice  as  many  reported  incidents  involving  Big  Brothers/Big  Sisters' 
volunteers  occurred  in  a  second  or  subsequent  match.    In  cases  where  adults 
are  paired  with  children,  volunteers  often  may  terminate  matches  early  on 
because  the  child  is  unresponsive  or  the  two  did  not  get  along. 

The  245-item  screening  tool  is  broken  down  into  subsections  on 
background  information;  relationships  with  children;  family  structure  and 
environment;  present  life-style  and  relationships;  and  the  match  relationship. 


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Questions  encompassing  the  above  10  indicators  are  interspersed  in  the 
appropriate  sections.    McCormack  and  Selvaggio  affirm  that  using  such  a 
screening  device  serves  to  (1)  protect  the  credibility  of  caseworker;  (2)  shield 
the  community  agency  from  liability;  and  (3)  limit  access  of  offenders  into 
youth-oriented  community  agencies.    The  authors  strongly  recommend, 
however,  that  the  instrument  be  used  in  conjunction  with  other  precautionary 
screening  procedures. 

John  Walker,  Executive  Director  of  Big  Brothers/Big  Sisters  in  Lowell, 
said  the  agency  has  been  using  the  interview  screening  tool  for  about  five 
years  now.    The  whole  set  of  questions  takes  about  an  hour  and  a  half  to 
complete  and  is  divided  into  two  parts,  the  second  of  which  focuses  more  on 
sex-related  issues  and  is  broached  only  after  the  applicant  has  had  time  to 
become  comfortable  with  the  agency  and  interviewer.   The  interview  screening 
tool  is  used  in  conjunction  with  other  screening  practices,  including  criminal 
background  checks,  reference  checks,  asking  applicants  to  respond  to 
hypothetical  situations,  and  home  visits.    Applicants  are  notified  of  all  steps  in 
the  volunteer  selection  process,  which  takes  two  to  four  months  to  complete. 
According  to  Walker,  about  25  to  35  percent  of  applicants  do  not  follow 
through,  and  about  a  quarter  of  all  applicants  are  rejected  outright  for  "one 
reason  or  another."    In  1991,  the  agency  screened  close  to  100  volunteers  who 
made  it  past  the  initial  selection  criteria  (personal  correspondence,  November 
6,  1992). 

F.      Reference  Checks 

Many  organizations  verify  or  supplement  their  knowledge  of  an 
applicant  by  contacting  a  past  employer.    Although  conferring  with  an 
applicant's  past  employer(s)  seems  like  an  obvious  step  in  pre-employment 
screening,  Lotitio  and  Bryant  (1988)  found  that  up  to  75  percent  of  employers 
fail  to  check  references  before  hiring  an  individual.    Some  organizations  may 
shy  away  from  reference  checking  because  in  today's  business  world,  it  can  be 
a  double-edged  sword:    on  one  side  is  the  power  of  a  former  employee  to  sue 
for  defamation;  on  the  other,  the  power  of  a  third  party  to  sue  an  employer  for 
negligent  hiring. 

An  employer's  responsibility  to  check  into  an  applicant's  background, 
however,  is  magnified  when  the  position  requires  the  applicant  to  come  into 
contact  with  the  public,  especially  unsupervised  contact.    Case  in  point:    A 
Colorado  state  court  awarded  a  plaintiff  $210,000  in  damages  after  a 
McDonald's  worker,  who  had  previously  been  convicted  of  sexually  assaulting 
children,  assaulted  a  3-year-old  boy.    McDonald's  did  not  know  about  the 
conviction,  nor  did  it  check  all  his  references.    The  state  agency  that  placed 
the  worker  shared  the  liability  (Collyer  and  Eastus,  1991). 


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To  avoid  defamation  and  negligent  hiring  claims  when  checking  or 
providing  references,  Lotitio  and  Bryant  (1988)  suggest  the  following: 
maintain  a  corporate  policy  of  truthfulness  and  accuracy;  document  all  pre- 
employment  investigation;  insure  that  communications  concern  work-related 
matters  only;  obtain  a  written  release  giving  employee's  consent  to  release 
information;  have  the  applicant  explain  any  gaps  in  employment  history; 
centralize  who  provides  reference  information;  and  provide  information  on  a 
need-to-know  basis  only.    In  addition,  an  employer's  verbal  or  written 
assurance  that  employment  (and  other)  references  will  be  checked  will  help 
assist  in  deterring  those  who  have  a  problematic  employment  history. 

Figure  H  provides  examples  of  reference  checking  practices  followed 
by  Big  Brothers/Big  Sisters  and  a  sampling  of  public  schools,  while  Figure  I 
indicates  that  public  schools  are  inclined  to  conduct  reference  checks,  (both 
with  prior  employers  and  "other"  character  references),  rather  than  criminal 
record  checks. 

Figure  H:    TYPES  OF  REFERENCES  CHECKED 
By  Big  Brothers/Big  Sisters  and  Public  Schools 


Pub  i  ic   ccrioois 


Big   Brotrws/6lg    Sisters 
Past  eroioyers    S23  Other  character  roty//A  Other   vol    oros 


Sources:  Carrilio.  1987:  Titus  and  DeFrances.  1989 


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Figure  I:    TYPE  OF  SCREENING  BY  PUBLIC  SCHOOLS 
By  Employee  Position 


i=*et  emciyr   '•of   ac  R\    N  Otner  rB<  <x  V///X  Criminal   record  ce 


Source    Titus  and  DeFraoces.  1989 

G.     Psychological  Tests 

As  previously  discussed  in  Section  II,  the  literature  reveals  several 
offender  and  situational  characteristics  believed,  but  not  proven  to  be  linked  to 
abuse.    Some  child  abuse  professionals  have  taken  this  philosophy  a  step 
further  to  construct  psychological  tests  that  they  hope  will  determine  with 
appropriate  scientific  validity  a  causal  relationship  between 
personality/behavior  traits  and  child  abuse.    The  church,  in  light  of  sexual 
abuse  scandals,  has  increasingly  turned  to  the  use  of  such  psychological  and 
personality  tests  for  prospective  pastors.    The  Denver  Post  (April  28,  1991) 
reported  that  "[m]ost  ministers  believe  they're  'called  by  God,'  but  a  growing 
number  of  churches  and  synagogues  want  a  recommendation  from  a 
psychologist  as  well." 

The  power  of  psychological  tests  to  identify  employees/volunteers  with 
a  propensity  for  abuse,  however,  is  debatable.    After  reviewing  the  literature 
on  various  psychological  tests,  Murphy  and  Peters  (1992)  concluded  that 
"there  is  no  research  evidence  to  suggest  that  clinicians  using  all  the  tools 
available  can  profile  sexual  offenders  with  sufficient  validity  and  reliability.  .  . 
. "    Many  psychological  tests  are  general  in  nature  and  those  tests  that  are 
child-abuse  specific  were  originally  developed  to  assess  abusive  parents,  not 
child  care  and  youth-service  workers. 


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Some  of  the  More  Weil-Known  Psychological  Tests 

Probably  the  most  recognized  psychological  test  for  assessing  a  parent's 
propensity  for  child  abuse  is  Joel  Milner's  Child  Abuse  Potential  Inventory 
(CAP).    The  CAP  delves  into  six  major  areas:  distress,  rigidity,  unhappiness, 
problems  with  child  and  self,  problems  with  family,  and  problems  from  others. 
Those  with  high  abuse  scores  are  more  likely  to  display  a  history  of  childhood 
abuse,  low  self-esteem,  poor  ego  development,  immaturity,  moodiness, 
frustration,  loneliness,  self-centeredness  and  an  aversion  to  responsibility 
(Anderson,  1988).    Using  the  CAP,  Atten  and  Milner  (1987)  also  found  that 
clear  job  expectations  and  overall  job  satisfaction  were  modestly  related  to  the 
measure  of  child  abuse  potential  (i.e.,  those  content  with  their  jobs  are  less 
likely  to  engage  in  abusive  behavior). 

Haddock  and  McQueen  (1983)  administered  the  CAP  Inventory,  the 
Minnesota  Satisfaction  Questionnaire  (MSQ)  and  a  General  Information  Form 
to  2 1  known  abusers  and  2 1  known  non-abusers  employed  by  out-of-home  care 
institutions.    Their  sample  accounted  for  four  job  categories:    psychiatric 
technicians,  supervising  psychiatric  technicians,  teaching  home  parents,  and 
hospital  workers/janitors.    In  addition  to  Milner's  CAP-I  Abuse  scale,  the 
authors  found  the  following  combined  variables  to  be  significant: 

►  MSQ  independence  subscale,  which  measures  an  employee's  satisfaction  on 
the  chance  to  work  independently; 

»•        MSQ  advancement  subscale,  which  measures  hope  of  job 

advancement/promotion; 

►  MSQ  achievement/accomplishment  subscale; 

►  Employee's  own  number  of  children  (two-thirds  of  non-abusers  had  less  than 

2  children,  while  24  percent  of  abusers  had  2  children  and  35  percent  had  3  or 
more); 

►  Childhood  exposure  to  abuse  and  extreme  discipline; 

►  Alcohol  consumption;  and 

►  Marital  status/distress. 

Jones  and  colleagues  (1990)  did  studies  involving  the  CAP,  the 
Personnel  Selection  Inventory  (PSI),  and  other  tests  to  assess  honesty, 
violence,  substance  abuse,  emotional  stability  and  safety.    The  authors 
identified  four  areas  in  which  child  abusers  tend  to  have  problems:  (1) 
difficulty  adjusting  socially  (may  be  antisocial,  alienated,  lonely  or  delinquent); 
(2)  emotionally  unstable  (experience  a  variety  of  conflicting  emotions  such  as 
frustration,  anxiety,  depression,  stress,  low  self-esteem);  (3)  impulsive  and 
unable  to  resist  their  wants;  and  (4)  frequently  conflict  with  authority  figures. 
While  the  authors  concluded  that  the  PSI  is  an  effective  instrument  for 
identifying  potentially  abusive  employees,  they  caution  that  it  is  "not  a  panacea 


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and  should  be  used  in  conjunction  with  other  credible  selection  devices  (e.g., 
interviews,  reference  checks,  criminal  background  checks,  job  simulations, 
physical  drug  tests,  and  supplementary  paper-and-pencil  tests)  and  effective 
monitoring  programs  (e.g.,  home  visits,  interviews  with  children,  parents  and 
child  care  workers)." 

The  MMPI  is  another  standardized  psychological  test  that  employers 
may  consult.    However,  recent  studies  show  that  the  MMPI  may  be  an 
inappropriate  tool  since  it  cannot  predict  sexual  abuse  or  provide  a  single 
profile  that  describes  child  molesters.28   Organizations  must  be  careful  not  to 
overestimate  the  usefulness  of  the  MMPI;  administered  alone,  as  with  other 
individual  screening  mechanisms,  the  MMPI  cannot  adequately  predict  abuse 
but  may  help  provide  one  piece  of  the  puzzle. 

Tfie  Abel  Screen 

More  recently,  Dr.  Gene  Abel  of  the  Behavioral  Medicine  Institute  of 
Atlanta  has  developed  a  test  he  coined  the  Abel  Screen  to  facilitate  the 
identification  of  individuals  with  pedophiliac  tendencies.    The  screen,  which  is 
a  series  of  four  tests  whose  scores  reveal  20  separate  kinds  of  sexual  interests, 
is  considered  to  be  most  effective  in  detecting  those  who  are  attracted  to  young 
boys.    According  to  Abel,  the  screen  is  noninvasive,  highly  accurate,  and  can 
be  administered  in  about  90  minutes  in  any  setting  (Archdiocese  of  Chicago, 
June  1992c).    As  of  this  writing,  the  research  on  which  these  conclusions  are 
based  is  in  preparation  for  publication.   To  date,  the  authors  of  this  report 
have  not  identified  any  published  research  findings  that  elaborate  on  the  work 
done  with  the  Abel  Screen. 

Abel,  himself,  recognizes  that  the  screen  "will  not  cure  the  problem  but 
it  will  be  a  response  to  the  difficult  issue  of  child  molesters  putting  themselves 
in  positions  with  access  to  children"  (Archdiocese  of  Chicago,  June  1992c). 
Further  research  is  needed  using  various  types  of  child-  and  youth-serving 
workers,  not  just  known  sex  offenders  undergoing  treatment,  to  document  the 
effectiveness  of  the  Abel  Screen. 

Based  on  the  literature  reviewed,  the  appropriateness  of 
psychological/personality  testing  to  predict  potentially  abusive  behavior 
remains  unclear.    However,  if  an  organization  is  contemplating  the  use  of 
Milner's  CAP  Inventory,  the  Abel  Screen,  the  MMPI  or  some  other  similar 
test  as  a  screening  mechanism,  several  issues  first  need  to  be  resolved.    These 
include  (1)  identifying  the  most  appropriate  psychological  test,  if  any,  to 
administer;  (2)  training  or  hiring  qualified  staff  to  conduct  and  interpret  the 
test;  (3)  presenting  the  test  in  a  non-offensive,  non-intrusive  manner,  especially 
with  regard  to  volunteers;  and  (4)  determining  how  to  cover  the  costs 


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associated  with  psychological  screening.    Anderson  (1988)  raises  the  following 
additional  considerations: 

Who  would  designate  applicants  as  having  "failed"  a  test? 

Who  will  safeguard  the  test  scores  and  make  sure  they  remain  confidential? 

What  child  abuse  potential  data  will  be  released  to  failing  applicants  and  how 
will  it  be  released? 

What  can  be  done  to  diminish  the  stigma  associated  with  a  failing  test  score? 

Will  applicants  who  fail  a  test  be  allowed  to  retake  it?   at  what  point? 

H.     Additional  Pre-Employment  Screening  Options 

For  those  organizations  that  want  to  exhaust  background  screening 
options,  there  are  a  few  additional  methods  open  to  them.    One  of  the  more 
straightforward  and  affordable  involves  obtaining  an  applicant's  motor  vehicle 
report  (MVR).    The  MVR  is  useful  to  confirm  an  applicant's  name,  social 
security  number,  birth  date  and  other  identifying  information,  and  also  serves 
as  a  cross-check  to  uncover  false  or  misleading  information  or  other  states 
where  the  person  has  lived  or  worked.    Better  yet,  most  states  will  charge  only 
a  few  dollars  for  this  service  (Long,  1992). 

Another  alternative,  which  may  be  especially  useful  for  the  voluntary 
organizations  and  foster  care  or  adoptive  parent  applicants,  is  home  visits  or 
assessments.    Carrilio  (1987)  found  that  90  percent  of  Big  Brother/Big  Sister 
affiliates  conducted  home  assessments  of  potential  volunteers.    Two  additional, 
but  somewhat  controversial  electives  to  be  used  in  combination  with  other 
screening  procedures  include  drug  testing  and  requiring  a  one-year  period  of 
residency. 

To  exercise  many  of  the  available  screening  methods  presented  here 
may  entail  a  substantial  doling  out  of  human  resources  and  chipping  away  at 
valuable  time;  two  precious  commodities  that  most  organizations  are  reluctant 
to  squander.    The  mobility  of  today's  society  also  presents  special  difficulties 
in  conducting  background  investigations  and  may  lead  to  a  demand  for  more 
time  and  people  to  complete  the  screening  than  originally  allotted.   Those 
agencies  with  insufficient  personnel  or  time  to  conduct  thorough  pre- 
employment  screening,  but  which  have  ample  discretionary  funds,  may  want  to 
look  into  using  a  private  background  investigative  firm.    Services  provided  by 
these  firms  vary  but  can  include  reference  checks,  criminal  background 
checks,  drug  screening,  psychological  testing  and  polygraph  tests.    The 
advantages  of  using  an  outside  source  to  conduct  background  screening 
include:    quick  turnaround,  legal  accuracy,  thoroughness,  and  in-depth 
analysis.    The  downfall  is  that  these  services  may  be  only  local  or  regional  in 
breadth  and  can  be  quite  costly. 


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Clearly,  screening  against  state  child  abuse  and/or  sex  offender 
registries  is  not  without  problems,  many  of  which  are  similar  to  the  pitfalls  of 
criminal  record  checks.    In  addition,  the  National  Practitioner  Data  Bank  and 
the  Teacher  Identification  Clearinghouse  are  limited  in  their  scope  and 
accessibility.    Given  the  complications  associated  with  these  various 
information  systems,  child-  and  youth-serving  organizations  may  opt  for  other 
screening  measures  that  rely  less  on  outside  systems  and  more  on  internal 
investigation. 

I.       Post-Hiring/Placement  Procedures  to  be  Used  in 
Conjunction  with  Background  Screening 

Many  authors  urge  that  prevention  of  institutional  abuse  should  not  stop 
at  the  pre-employment  screening  of  applicants,  but  continue  by  addressing  on- 
the-job  issues  such  as  training  and  improved  supervision  and  monitoring. 
Screening,  coupled  with  appropriate  personnel  policies,  will  help  protect 
children  and  boost  staff  productivity.    Adequate  day-to-day  supervision  of  staff 
and  a  probationary  period  for  new  employees/volunteers,  ranks  high  on  the 
safeguard  list.29   In  fact,  Finkelhor  and  Williams  (1988)  found  that  almost 
half  of  the  perpetrators  had  been  employed  at  their  day-care  job  for  less  than  a 
year  at  the  time  the  abuse  occurred. 

"The  agency  needs  a  clear  and  concise  policy  that  sets  the  parameters 
for  discipline  and  child  management.    An  overall  agency  philosophy  and  tone 
or  attitude  must  permeate  throughout  the  ranks  of  the  staff,  and  it  must  be 
effectively  communicated"  (California  Association  of  Services  for  Children, 
1987).    On  the  advice  of  DHHS  (1985),  an  organization's  written  policies 
should  include:  (1)  a  code  of  conduct  for  staff  relating  to  their  behavior  with 
children;  (2)  policies  on  reporting  suspected  abuse;  (3)  policies  on 
investigating  staff  or  applicants  concerning  abuse;  and  (4)  policies  on  hiring 
staff  previously  accused,  indicted  or  found  guilty  of  abuse.    Copple  (1990)  also 
recommends  creating  linkages  between  various  regulatory  systems  regarding 
staff  qualifications  and  certification  requirements  to  help  unify  the  work  force 
and  extend  training  opportunities. 

Ongoing  personnel  training  should  include  coverage  of  facility's 
emergency  plans  and  reminders  on  safety  procedures;  principles  and  practices 
of  child  care  and  the  facility's  philosophies;  a  review  of  administrative  policies 
and  procedures;  and  crisis  management  techniques.    An  additional  line  of 
defense  recommended  for  child-  and  youth-serving  organizations  consists  of 
awareness  programs  for  children,  parents  and  all  employees  and  volunteers 
who  work  with  or  around  children  (77?^  News  Chief,  September  28,  1984). 


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J.      Summary  Statement  Regarding  Screening  Methods 

Each  of  the  screening  procedures  outlined  in  this  section  yields,  for  the 
most  part,  different  information  about  an  applicant's  character.    While  criminal 
record  and  sex  offender  registry  checks  may  provide  specific  criminal 
information  such  as  felony  convictions,  screening  against  state  central  child 
abuse  registries  instead  offers  information  gleaned  from  civil  child  protection 
investigations.    In  comparison,  the  more  standard  hiring  practices  (e.g., 
reference  checks,  application  forms,  personal  interviews)  provide  bits  and 
pieces  of  information  that  when  culled  together  help  an  employer  gauge  an 
applicant's  integrity  and  stability.    Obviously  all  screening  methods  and  other 
prevention  strategies  are  not  without  cost  implications  for  an  organization. 
Because  most  organizations  do  not  have  the  financial  or  human  resources  to 
employ  all  of  these  methods,  a  thorough  assessment  of  the  relative  merits  of 
each  practice  is  essential. 


VH.    CONCLUSIONS  AND  RECOMMENDATIONS 

A.     Summary  -  What  We  Know  to  Date 

There  is  no  disputing  that  we  --  legislators,  policymakers,  child 
advocates,  service  providers  and  other  concerned  parties  --  have  our  work  cut 
out  for  us  in  fighting  out-of-home  abuse  perpetrated  by  child  care  and  youth- 
service  workers.    The  first  step,  determining  the  true  scope  of  the  problem,  is 
not  an  easy  task  given  (a)  the  multitude  of  settings  in  which  child  care  and 
youth-service  workers  reside;  (b)  the  millions  of  children  who  come  into 
contact  with  these  adults;  and  (c)  the  absence  of  uniform  definitions  or 
methods  to  identify  physical  and  sexual  child  abuse. 

There  are  no  easy  answers  to  preventing  extrafamilial  abuse.    We  know 
that  people  who  abuse  or  neglect  children  in  out-of-home  settings  are  a  diverse 
and  complex  population  for  which  no  single  profile  exists.    And  given  the 
unpredictability  of  human  behavior  and  the  belief  that  there  is  not  one  but 
rather  a  series  of  factors  leading  up  to  an  abusive  incident,  we  must  accept  the 
impossibility  of  being  100  percent  confident  that  all  potentially  abusive 
employees  and  volunteers  have  been  screened  out.   This,  however,  does  not 
mean  that  child-  and  youth-serving  organizations  are  powerless;  they  can  take 
advantage  of  the  many  available  screening  options,  being  careful  not  to  rely  on 
one  exclusive  mechanism  in  determining  an  applicant's  suitability. 

From  the  discussion  of  legislative  and  regulatory  activity  affecting  the 
screening  of  individuals  who  work  with  children,  the  crafting  of  any  new 
federal  and  state  legislation  must  be  governed  by  a  solid  understanding  of  the 
issues.    These  complex  issues  include:    identifying  situations  where  children 


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are  most  at  risk,  improving  the  timeliness  and  accuracy  of  criminal  record 
checks  (e.g.,  enhanced  data  quality  and  disposition  reporting),  and  developing 
procedures  regarding  the  confidentiality  and  correction  of  background 
information.    Improved  communication  and  appropriate  information-sharing 
between  all  relevant  entities  (e.g.,  child-  and  youth-serving  organizations, 
federal  and  local  law  enforcement  agencies,  child  protective  services,  licensing 
and  regulatory  agencies)  will  also  go  a  long  way  toward  the  development  of 
more  effective  responses  to  out-of-home  abuse. 

Criminal  History  Record  Checks 

As  knowledge  about  out-of-home  abuse  has  increased  over  the  years, 
there  has  been  a  proliferation  of  wide-ranging  ideas  on  how  we  should  react. 
The  area  of  criminal  record  checks  and  access  to  individual  criminal  history 
files,  in  particular,  has  received  much  attention  and  is  a  domain  fraught  with 
controversy  and  sticky  moral  and  legal  issues.    Because  empirically-based 
literature  assessing  criminal  record  screening  of  child  care  and  youth-service 
workers  is  limited,  current  well-entrenched  conflicts  over  the  effectiveness  of 
this  type  of  screening  are  not  likely  to  be  settled  anytime  soon. 

Based  on  the  literature  reviewed,  we  can  conclude  that  criminal  record 
checks  are  not  the  cure-all  to  preventing  out-of-home  child  abuse  perpetrated 
by  any  one  of  the  millions  of  child  care  and  youth-service  workers.    Even  if 
all  child-  and  youth-serving  organizations  enjoyed  direct  access,  free  of 
charge,  to  state  and  federal  criminal  history  records,  the  problem  of  abuse 
would  not  magically  be  eradicated.    Child  abuse  is  a  complex  problem  to 
which  there  is  no  quick  fix.    Criminal  record  checks  obtained  in  a  timely 
fashion  can  provide  a  useful  and  important  piece  of  the  employee/ volunteer 
selection  puzzle;  however,  they  do  not  provide  the  complete  picture  of  an 
applicant's  suitability.    And  due  to  the  lack  of  uniformity  in  existing  state  laws 
and  regulations,  criminal  record  checks  are  not  applied  consistently  and  across- 
the-board  for  all  types  of  employees/volunteers  who  work  with  or  around 
children.    Further  investigation  regarding  the  appropriate  use  of  criminal 
history  information  is  needed,  along  with  specific  recommendations  to  increase 
the  effectiveness  of  such  checks. 

Other  Screening  Mechanisms 

The  synopsis  of  other  screening  methods  indicates  that  screening 
applicants  against  state  child  abuse  or  sex  offender  registries  is  not  without 
problems,  many  of  which  are  similar  to  criminal  record  checks  (e.g.,  access, 
accuracy,  timeliness,  fairness  to  applicant,  likelihood  of  identifying  an 
individual  with  a  record).    The  availability  of  child  abuse  and  sex  offender 
registry  information,  together  with  additional  data  maintained  in  systems  such 
as  the  National  Practitioner  Data  Bank  and  the  Teacher  Identification 


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Clearinghouse,  also  raises  questions  of  efficiency.    While  each  system  may 
serve  a  slightly  different  function  and  keep  its  own  separate  records,  there  may 
be  some  duplication  of  efforts,  especially  with  regard  to  criminal  history 
repositories  and  sex  offender  registries.    Further  inquiry  about  the  possible 
merging  of  systems  and/or  sharing  of  records  would  be  useful  for  both 
providers  and  users  of  background  information. 

Some  of  the  other  screening  mechanisms  discussed  are  also  subject  to 
limitations.    For  example,  valid  documentation  as  to  the  effectiveness  of 
psychological/personality  testing  in  identifying  potential  abusers  is  lacking. 
And  even  standard  reference  checking  has  become  hindered  by  fears  of 
defamation  and  negligent  hiring  claims.    Two  relatively  problem-free  methods 
are  a  comprehensive  application  form  and  in-depth  personal  interview 
procedures.    Although  it  is  clear  that  all  child-  and  youth-serving  organizations 
should  inquire  about  certain  issues  (e.g.,  criminal  convictions,  work  and 
educational  history),  the  range  of  more  intensive  questions  asked  may  differ 
slightly  depending  on  the  type  of  child-  and  youth-serving  agency  and  the 
applicant  position  being  considered. 

B.     Preliminary  Recommendations  for  Effective  Screening 

Although  a  number  of  issues  remain  for  analysis  and  much  empirical 
evidence  must  be  gathered  to  properly  evaluate  the  effectiveness  of  various 
screening  methods,  child  care  and  youth-serving  entities  do  have  a  number  of 
available  options  to  screen  prospective  employees/volunteers  who  work  with 
children.    The  recommendations  presented  in  the  literature  fall  into  three 
general  categories:    (1)  procedures  for  organizations  conducting  criminal 
record  checks;  (2)  general  prevention  strategies  for  all  child-  and  youth-serving 
organizations;  and  (3)  policies  and  procedures  for  state  licensing  agencies  to 
prevent  out-of-home  abuse. 

Conducting  Criminal  History  Checks 

At  this  juncture,  it  is  worth  reiterating  to  readers  that  criminal  record 
checks  are  only  a  small  part  of  good  hiring  practices.    If  a  child-  and  youth- 
serving  organization  is  going  to  employ  criminal  background  checks,  whether 
it's  mandated  by  law  or  internal  organizational  policy,  then  it  should  do  so 
with  (1)  a  thorough  understanding  of  and  compliance  with  appropriate  state 
and  federal  laws  and  regulations;  (2)  full  disclosure  to  the  applicant  of  the 
screening  procedure  and  purpose  for  which  information  will  be  used;  (3) 
written  authorization/release  from  the  applicant;  and  (4)  strict  procedures  to 
maintain  the  confidentiality  of  the  record  information  (Long,  1992). 
Additional  recommendations  pertaining  to  criminal  record  checks,  as  well  as 
child  abuse  and  sex  offender  registry  checks  include:30 


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■  Establish  appropriate  statutory  definitions  of  institutional  abuse  and 
neglect  and  clarification  of  rights  and  responsibilities  of  all  parties  in 
given  settings. 

■  Separate  the  employment  screening  function  from  the  use  of  the 
criminal  history  and  child  abuse  registry  information  as  a  diagnostic 
and  risk  assessment  tool. 

■  Draft  regulations  and  organizational  policies  on  the  appropriate  use  of 
criminal  history  and  child  abuse  registry  information  and  develop 
specific  criteria  for  using  these  mechanisms  for  employment  and 
licensing  purposes. 

■  Provide  an  appeal  process  before  an  administrative  law  judge  or  other 
appropriate  party. 

■  Establish  an  oversight  committee  to  study,  evaluate  and  monitor  the  use 
of  criminal  history  and  child  abuse  registry  information  for  employment 
and  licensing  purposes. 

Despite  all  the  unanswered  questions  and  concerns  about  criminal 
record  checks  as  a  screening  mechanism,  Davidson  (1985)  concludes  that 
"criminal  record  screening  is  an  important,  albeit  imperfect,  weapon  in  the 
arsenal  which  is  available  to  the  government  and  private  employer  to  help 
protect  children  from  maltreatment  in  out-of-home  care.  .  .  .  Coupled  with  an 
effective  pre-employment  screening  interview  and  scrupulous  background 
check  of  references,  the  well-publicized  conducting  of  a  criminal  record  check 
becomes  a  device  that  should  dissuade  many  pedophiles  or  other  disturbed 
people,"  from  gaining  access  to  children  through  a  child  or  youth-serving 
organization. 

Developing  Additional  Prevention  Strategies 

A  comprehensive  background  screening  approach  using  the  methods 
discussed  throughout  this  report  is  a  good  first  step  in  selecting  quality  child 
care  and  youth-service  workers.    But  since  screening  is  not  foolproof  in 
weeding  out  individuals  who  may  harm  children,  an  organization  should 
consider  adopting  supplemental  dissuasion  measures.    These  auxiliary  tactics 
can  take  the  shape  of  succinct  and  explicit  organizational  policies  and 
procedures.    Ten  of  the  more  highly  recommended  actions  to  strengthen  child 
abuse  prevention  efforts  include:31 

/       Institute  written  organizational  policies  and  train  staff  on  identification 
and  reporting  of  suspected  child  abuse  by  employees  and  volunteers. 


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/  Report  all  allegations  of  abuse  by  staff  to  the  organization's  national 
headquarters,  which  may  be  able  to  help  respond. 

/■       Develop  concrete  policies  for  when  an  allegation  of  abuse  is  made 
against  organizational  employees  or  volunteers  (e.g.,  restrict  their 
contact  with  kids,  deal  with  the  problem  immediately). 

/       Train  parents  and  children  to  identify  inappropriate  employee/ volunteer 
behavior. 

/       Require  employees/volunteers  to  attend  an  orientation  and  sign  a 
statement  that  they  have  read  and  understand  the  agency's  written 
policies  on  treatment  of  children  (e.g.,  discipline,  management  of 
difficult  behavior)  and  the  state  reporting  laws. 

•  Increase  parental  involvement  and  communication;  adopt  an  open-door 
policy  for  parents  to  make  unannounced  visits  at  any  time. 

/  Provide  educational  programs  on  child  abuse  --  in  particular,  on  the 
identification  and  tendencies  of  child  molesters  -  for  staff  and  other 
related  community  agencies. 

•  Inform  employees  and  volunteers  that  the  agency  will  cooperate  with 
local  officials  (child  protective  services  and  law  enforcement)  in 
investigation  of  cases. 

/       Advocate  for  legal  and  judicial  reforms  which  ease  the  trauma  suffered 
by  children  who  testify  in  court. 

/       Have  at  least  two  caregivers  on  duty  at  all  times,  including  early 

morning  and  closing,  to  help  minimize  the  problem  that  80  percent  of 
abuse  substantiations  rely  wholly  on  a  child's  testimony  with  no 
corrobating  information  from  other  witnesses. 


Increasing  the  Role  of  State  Licensing  Agencies 

On  a  broader  scope,  efforts  to  protect  children  from  out-of-home  abuse 
are  not  restricted  to  an  organization's  use  of  background  screening  methods 
and  establishment  of  internal  policies  and  procedures.    State  licensing  agenciest 
too,  can  play  an  important  role  in  preventing  and  responding  to  abuse  in  out- 
of-home  settings  by  facilitating  interagency  cooperation  and  promoting  uniform 
procedures.    Some  general  suggestions  offered  include:32 


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►  Establish  clear  procedures  for  timely  disposition  of  abuse  cases, 
perhaps  employing  a  multidisciplinary  team  approach  (as  promoted  in 
intrafamilial  cases); 

►  Implement  a  system  for  mutual  reporting  of  complaints  among 
Department  of  Social  Services  (DSS)  and  child  care  agencies  and 
clarify  investigative  responsibilities  and  notification  requirements 
between  involved  agencies; 

►  Adopt  clearly  written  policies  on  information-sharing  among  agencies 
and  implement  mechanisms  within  and  between  states  to  track  convicted 
offenders  and  prevent  their  continued  work  in  child  care  facilities;  and 

►  Revamp  licensing/registration  laws  to  include  minimum  staff 
qualifications;  required  reference-checking  procedures;  mandated 
training;  state  regional  office  technical  assistance;  clear  definition  of 
adequate  supervision;  basis  for  suspension  or  termination  of 
employees/volunteers;  and  authorization  of  fiscal  penalties  and/or 
revocation  of  license.    In  revising  these  laws,  particular  consideration 
should  be  given  to  eliminating  existing  exemption  clauses  so 
licensing/registration  mandates  encompass  all  types  of  entities  providing 
out-of-home  care  or  other  services  to  children  and  youth. 

C.     Looking  Ahead  to  More  Effective  Screening  and  Other 
Prenention  Efforts 

Our  review  of  the  literature  has  confirmed  the  need  for  more  thorough 
analyses  of  screening  methods.    Identifying  effective  screening  procedures  will 
obviously  assist  organizations  in  hiring  suitable  employees  and  volunteers  and 
protecting  the  children  they  serve.    Systematic  evaluations  will  also  help  detect 
certain  factors  or  problem  areas  that,  if  responded  to,  may  result  in 
significantly  different  outcomes.    Such  analyses  thus  form  the  basis  for 
developing  more  effective  strategies  to  prevent  child  abuse. 

The  Need  for  Cost-Benefit  and  Cost-Effectiveness  Studies 

Any  future  legislative  or  programmatic  requirements  must  qualify 
matters  of  funding  and  include  provisions  for  cost-benefit  and  cost- 
effectiveness  analyses  and  other  systematic  evaluation  procedures.    With  the 
slashing  of  federal,  state  and  city  budgets  -  and  the  withering  of  private 
funding  dollars  ~  government  agencies,  foundations  and  corporations,  and 
numerous  service  providers  are  all  being  forced  to  make  more  judicious 
financial  decisions.    This  necessitates  comparisons  among  prevention  strategies 
to  identify  the  most  cost-effective  methods  and  to  specify  which  approach  will 
yield  more  benefit  in  reducing  the  many  damaging  effects  of  child  abuse. 


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Despite  increased  awareness  about  out-of-home  abuse,  systematic 
research  on  the  impact  of  abuse  has  not  developed  at  the  same  pace.    There  is 
minimal  empirical  literature  to  help  guide  the  planning  of  effective  prevention 
and  management  of  abuse  (Gomes-Schwartz  et  al.,  1990).    Individual 
prevention  strategies  (e.g.,  criminal  record  checks,  parent  and  child  education, 
staff  training)  have  not  been  compared  to  one  another  on  a  dollar-for-dollar 
basis.    In  addition  to  cost-effectiveness  analyses,  cost-benefit  analyses  would 
help  address  whether  allocating  scarce  funds  specifically  to  prevent  out-of- 
home  abuse  —  instead  of  concentrating  on  abuse  within  the  family  —  has  a 
greater  impact  in  reducing  the  incidence  of  child  abuse. 

Current  ABA  Study  on  the  Effective  Screening  of  Child  Care  and 
Youth-Service  Wo r ken 

As  we  conclude  this  report,  readers  are  reminded  that  the  purpose  of 
this  literature  review  is  to  identify  and  discuss  the  more  prominent  issues 
raised  in  the  legal  and  social  science  literature  regarding  effective  screening  of 
child  care  and  youth-service  workers  who  may  abuse  children.    This  review 
serves  to  outline  the  framework  for  the  current  ABA  Center  on  Children  and 
the  Law  study  of  effective  screening  of  child  care  and  youth-service  workers. 
With  the  support  of  the  Office  of  Juvenile  Justice  and  Delinquency  Prevention 
(OJJDP),  we  hope  that  our  present  research  efforts  will  shed  light  on  many  of 
the  issues  raised  in  this  literature  review.    Through  this  on-going  endeavor,  the 
ABA  Center  on  Children  and  the  Law  seeks  not  only  to  provide  insight  on 
what  screening  methods  are  available  and  currently  being  used  by  child-  and 
youth-serving  organizations,  but  also  to  identify  those  methods  most  effective 
in  preventing  out-of-home  abuse.    The  final  product  of  this  two-year 
undertaking,  to  be  completed  in  June  1994,  will  include  recommendations  for 
a  national  approach  to  screening  of  child  care  and  youth-service  workers, 
which  we  hope  can  be  readily  adopted  and  implemented  by  those  organizations 
entrusted  with  the  care  of  our  children  and  youth. 


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190 
ENDNOTES 


1.  As  part  of  the  current  study,  the  ABA  Center  on  Children  and  the  Law  is 
developing  a  directory  of  the  various  types  of  child-  and  youth-serving 
organizations,  complete  with  a  listing  of  professions,  jobs  and  volunteer 
positions;  the  estimated  number  of  individuals  in  those  given  professions  and 
positions;  and  the  estimated  number  of  children  served.    The  directory  will 
serve  to  identify  the  potential  universe  of  those  who  work  with  or  around 
children  and  analyze  the  degree  of  risk  and  accessibility  to  children  in  different 
settings. 

2.  The  average  center-based  child  care  program  enrolls  62  children,  with 
enrollment  ranging  from  fewer  than  10  to  more  than  100  children.    The 
average  family  day  care  program  enrolls  6  children,  with  about  half  caring  for 
fewer  than  6  children  and  most  of  the  remaining  providers  caring  for  between 
6  and  10  children  (Kisker  et  al.,  1991). 

3.  At  the  beginning  of  1990,  there  were  approximately  80,000  center-based 
early  education  programs,  with  an  average  staff  size  of  10-11,  and  118,000 
regulated  family  day  care  providers,  the  majority  working  alone  and  40 
percent  using  an  assistant  (Kisker  et  al.,  1991).    Unregulated  family  day  care 
homes  alone  may  account  for  60  to  90  percent  of  the  total  supply,  meaning 
there  may  be  anywhere  from  496.000  to  over  1.9  million  such  homes  (Hayes 
etal.,  1990). 

4.  Estimates  for  public  and  private  school  employees  are  based  on  figures 
from  the  Digest  of  Education  Statistics,  J 992;  figures  on  volunteers  are 
Volunteers  in  Public  Schools  (Michael,  1990).    Staffing  estimates  for 
independent  schools  are  extrapolated  from  the  National  Association  of 
Independent  Schools,  whose  membership  accounts  for  two-thirds  of  all 
independent  schools,  employing  an  estimated  73,000  to  74,000  staff  (NAIS 
Statistics,  1992). 

5.  See,  e.g..  Daro,  1988;  Fuller,  1989;  Gomes-Schwartz  et  al.,  1990;  Groth 
etal.,  1982. 

6.  For  possible  offender  characteristics,  see,  e.g.,  American  Public  Welfare 
Association  (APWA),  February  1988;  Boy  Scouts,  1987;  California 
Association  of  Services  for  Children.  1987;  Copeland  and  Haldopoulos,  1988; 
Finkelhor  and  Williams.  1988;  Fuller,  1989;  Goldstein.  1987;  Haddock  and 
McQueen,  1983;  Lanning,  1987;  Milner  and  Chilamkurti,  1991;  Shaughnessy, 
1984;  Simon  et  al.,  1992;  and  Wolff,  1982.    For  possible  situational 
characteristics,  see,  e.g.,  APWA.  February  and  June  1988,  August  1989;  New 
York  State  Subcommittee  on  Child  Abuse,  1983;  Rogers  and  James,  1991;  and 
Shaughnessy.  1984. 

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7.  The  ABA  Center  on  Children  and  the  Law  has  sought  to  fill  this  gap  by 
conducting  an  in-depth  supplemental  study  on  the  effectiveness  of  screening 
practices  in  conjunction  with  the  Department  of  Defense.    This  piece  of  the 
project  will  provide  concrete  information  on  the  implementation,  results  and 
evaluation  of  background  screening  methods,  in  particular,  criminal  record 
checks.    The  Department  of  Defense  makes  an  excellent  host  for  such  a  study 
due  to  the  law  (P.L.  101-647)  mandating  screening  of  all  employees  in 
federally-operated  or  federally-contracted  child  caring  facilities  and  the  variety 
of  settings  (e.g.,  child  development  centers,  schools,  medical  facilities,  and 
voluntary,  recreational  groups)  in  which  DoD  serves  children. 

8.  See,  e.g.,  Justice  et  al.,  1985;  Lauten,  1985. 

9.  See,  e.g.,  Abel  et  al.,  1987;  Colorado  Department  of  Social  Services, 
1987;  Rice  et  ah,  1991. 

10.  Those  readers  interested  in  a  more  detailed  discussion  of  criminal  history 
information  systems  may  want  to  read  the  Office  of  Technology  Assessment's 
1982  publication,  An  Assessment  of  Alternatives  for  a  National  Computerized 
Criminal  History  System. 

11.  In  limited  circumstances,  employers  may  conduct  nationwide  screening 
through  the  FBI  without  utilizing  a  state  agency  intermediary.    To  wit,  certain 
banking  institutions,  registered  futures  associations  and  nuclear  power  plants 
may  directly  request  the  FBI  to  screen  its  files  (Davidson  et  al.,  1991). 

12.  Information  on  fees  was  obtained  from  the  Department  of  Defense  (1993) 
and  personal  conversations  with  several  state  agencies  responsible  for 
processing  criminal  record  checks. 

13.  See,  e.g.,  Davidson  et  al.,  1991;  SEARCH  Group,  April  1984. 

14.  There  is  a  plethora  of  literature  discussing  the  right  to  privacy.    For  a 
general  discussion  of  the  federal  constitutional  right  to  privacy  including 
informational  privacy,  which  Prof.  Alan  Westin  (Privacy  and  Freedom.  1967) 
has  defined  as  "the  claim  of  individuals,  groups,  or  institutions  to  determine 
for  themselves  when,  how  an  to  what  extent  information  about  them  is 
communicated  to  others,"  see,  e.g.,  Cass,  1991;  Grossberg,  1991;  Turkington, 
1990. 

15.  See,  e.g.,  Turkington,  1990. 

16.  See,  e.g.,  SEARCH  Group,  April  1984;  Bureau  of  Justice  Statistics,  1981. 

17.  Davidson  et  al.,  1991  discussing  New  York  v.  Ferber,  454  U.S.  1052  (1982). 


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192 


18.  See,  e.g.,  the  Bureau  of  Justice  Statistics  (BJS),  January  1992;  BJS, 
November  1990;  BJS,  April  1989;  BJS,  November  1988a  and  1988b;  BJS, 
1982;  SEARCH  Group,  July  1988b;  SEARCH  Group,  March  1983;  SEARCH 
Group,  November  1981. 

19.  It  should  be  noted  that  Title  VII  only  applies  to  paid  employees; 
volunteers  are  not  covered.    Davidson  et  al.  (1991)  citing  Smith  v.  Berks 
Community  Television,  794  F.  Supp.  (E.D.  Pa.  1987). 

20.  See,  e.g.,  Bates,  July  1990;  Cohen,  1985a. 

21.  See,  e.g.,  ABA  Juvenile  and  Child  Welfare  Law  Reporter,  1992,  11:107 
discussing  Grimes  v.  Cavazos,  786  F.  Supp.  1184  (S.D.N.Y.  1992)  where  the 
state  and  city  were  found  not  liable  under  section  1983  because  the  intent  to 
discriminate  was  not  alleged;  ABA  Juvenile  and  Child  Welfare  Law  Reporter, 
1991,  10:148,  discussing  Millspaugh  v.  County  Department  of  Public  Welfare, 
937  F.2d  1172  (7th  Cir.  1991). 

22.  SEARCH  Group  (April  1984)  also  discusses  "public  disclosure  of  private 
facts,"  one  of  the  four  types  of  the  tort  invasion  of  privacy.    The  extent  to 
which  this  and  other  types  of  invasion  of  privacy  actions  have  been  the  basis 
for  challenges  due  to  inaccurate  criminal  record  dissemination  is  unclear  from 
the  legal  literature  reviewed. 

23.  Titus  and  DeFrances  (1989)  found  that  within  the  public  schools,  the 
person(s)  responsible  for  evaluating  the  impact  of  background  information 
were:  superintendents  (78  percent);  principals;  (33  percent);  personnel 
departments  (27  percent);  department  heads  (5  percent);  general  counsels 
nprrentV  srhonl  hoards  H  nercenO  and  securitv  offices  (1  Dercent). 


(4 


aepanmerus  (,z  /  pcrcciu;,  ueparuucm  ncaui  yj  pcucui;,  gcnciai  cu 
percent);  school  boards  (3  percent)  and  security  offices  (1  percent). 

24.  See,  e.g.,  Davidson  et  al.,  1991;  Gordon,  1986-87;  Morgan,  1984;  Titus 
and  DeFrances,  1989. 

25.  See,  e.g.,  Maney  and  Wells,  1988;  Sale  et  al.,  1988. 

26.  Information  on  state  sex  offender  registries  comes  primarily  from  an  ABA 
Center  on  Children  and  the  Law  survey  (February  1993)  of  Attorneys  General 
from  the  50  states  and  the  District  of  Columbia.    Supplemental  information 
was  gathered  from  a  December  1992  draft  report  from  the  National  Center  on 
Missing  and  Exploited  Children  (NCMEC);  a  February  1993  internal  memo 
from  the  Idaho  Attorney  General's  Office;  and  a  December  1992  report  from 
the  Washington  State  Institute  for  Public  Policy.    The  states  that  have  sex 
offender  registration  requirements  include  Alabama,  Arizona,  Arkansas, 
California,  Colorado,  Florida,  Illinois,  Louisiana,  Maine,  Minnesota, 
Montana,  Nevada,  New  Hampshire,  North  Dakota,  Ohio,  Oklahoma,  Oregon, 
Rhode  Island,  Texas,  Utah  and  Washington.   Those  states  that  have  introduced 
or  drafted  legislation  include:  Alaska,  Idaho,  Iowa,  Kansas,  Kentucky, 

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193 


Michigan,  Mississippi,  New  York,  South  Carolina,  Tennessee,  Wisconsin  and 
Wyoming.    In  addition,  several  states  collect  DNA  samples  from  sex  offenders 
after  their  arrest  for  profiling  analysis.    (South  Dakota,  for  example,  reported 
it  is  in  the  process  of  cooperating  with  other  states  and  the  FBI  to  establish  a 
national  DNA  data  bank  to  assist  in  the  solving  and  prosecution  of  future  sex 
crimes.)    Readers  also  may  be  interested  to  know  that  Wisconsin  has 
developed  a  nursing  home  assistants  abuse  registry  to  prevent  abusive 
assistants  from  future  employment  at  any  federally  certified  Wisconsin  nursing 
home  facility.    This  register  also  covers  employees  and  institutional  aides  at 
facilities  which  serve  developmentally  disabled  children. 

27.  For  information  on  interviewing  applicants,  see,  e.g.,  Ball,  1986; 
Colorado  Department  of  Social  Services,  1987;  Hoeltke  and  Ross,  1987; 
Patterson,  1991. 

28.  See,  e.g.,  Anderson,  1988;  Carrilio,  1987;  Murphy  and  Peters,  1992. 

29.  See,  e.g.,  Broadhurst,  1986;  Copple,  1990;  Finkelhor  and  Williams, 
1988;  Staley  et  al.,  1986. 

30.  See,  e.g.,  Cohen,  1985a;  Davidson,  1986a;  Sale  et  al,  1988;  Rutledge, 
1992. 

31.  See,  e.g.,  Baker  and  Collier,  undated;  Davidson,  1986b;  Wolff,  1982. 

32.  See,  e.g.,  Davidson,  1985;  Kusserow,  1990;  Russell  and  Clifford,  1987; 
New  York  State  Subcommittee  on  Child  Abuse,  1983. 


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Abuse  Prevention  and  Treatment  in  the  1990s:   Keeping  Old  Promises, 
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Children  in  America:  Victims  of  Cficial  Neglect,  A  Report  for  the  U.S. 
House  of  Representatives,  100th  Congress,  First  Session. 

Select  Committee  on  Children,  Youth,  and  Families  (March  1987b).    Child 
Abuse  and  Neglect  in  America:  The  Problem  and  the  Response, 
Hearings  before  the  U.S.  House  of  Representatives,  100th  Congress, 
First  Session,  March  3,  1987. 

Select  Committee  on  Children,  Youth,  and  Families  (September  1986). 
Children  in  State  Care:   Ensuring  Their  Protection  and  Support, 
Hearings  before  the  U.S.  House  of  Representatives,  99th  Congress, 
Second  Session,  September  25,  1986. 

Select  Committee  on  Children  Youth,  and  Families  (July  1985).    Child  Care: 
The  Emerging  Insurance  Crisis,  Hearings  before  the  U.S.  House  of 
Representatives,  99th  Congress,  First  Session,  July  18  and  30,  1985. 

Seligson,  M.;  Genser,  A.;  Gannett,  E.;  and  Gray,  W.  (1983).  School-Age 

Child  Care:  A  Policy  Report,  Wellesley  College  Center  for  Research  on 
Women,  Wellesley,  MA. 

"Sex  Abuse  Checks  Breaking  Down,"  New  Society,  July  31,  1987,  5. 

"Sexual  Abuse  Case  Settled  by  Church,"  The  Washington  Post,  December  4, 
1992,  A:l. 

"The  Sexual  Abuse  Issue:    How  Can  Child  Care  Providers  Respond?" 
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Shaughnessy,  M.  (1984).  "Institutional  Child  Abuse,"    Children  and  Youth 
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101 


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Simon,  L.;  Sales,  B.;  Kaszniak;  and  Kahn,  M.  (1992).  "Characteristics  of 

Child  Molesters:    Implications  for  the  Fixated-Regressed  Dichotomy," 
Journal  of  Interpersonal  Violence,  7(2):  2 11-225. 

Skaff,  L.  (1988).  "Child  Maltreatment  Coordinating  Committees  for  Effective 
Service  Delivery,"  Child  Welfare,  67:217-30. 

Soler,  M.;  Shotton,  A.;  Bell,  J.;  Jameson,  E.;  Shauffer,  C;  and  Warboys,  L. 
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Bender  &  Co.,  Inc. 

Special  Reports,  Day  Care  Information  Service,  15(9),  April  14,  1986. 

"Speed  Up  Crime  Checks,"  Times-Picayune,  March  11,  1991. 

Splitt,  D.  (1988).  "School  Law,"  Executive  Educator,  10:12. 

Sprague,  M.  and  Horowitz,  R.,  (eds)  (1991).  Liability  in  Child  Welfare  and 

Protection  Work:   Risk  Management  Strategies,  Washington,  DC:  ABA 
Center  on  Children  and  the  Law. 

Staley,  C;  Ranck,  E.;  Perreault,  J.;  and  Neugebauer,  R.  (1986).  "Guidelines 
for  Effective  Staff  Selection,"  Exchange,  January  1986:22-25. 

"States  Probe  Own  Policies  on  Day  Care,"  Boston  Globe,  November  25,  1984, 
77. 

Strouse,  C.  and  Bailey,  J.  D.  (1989).  "Preventing  Maltreatment  of  Children  in 
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Strouse,  C.  and  Bailey,  J.  D.  (1990).  "Residential  Child  Care  Facility's  Self- 
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102 


216 


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Purposes,  Hearings  before  the  Committee  on  the  Judiciary,  U.S.  House 
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1987. 

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U.S.  Department  of  Health  and  Human  Services  (1990c).  "National 

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Selection  of  Staff:  A  Guide  for  Managers  of  Preschool  and  Child  Care 
Programs,  Washington,  DC:  Administration  for  Children,  Youth  and 
Families. 

U.S.  Department  of  Justice  (May  1986).  Employer  Access  to  Sex  Offense 
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Wald,  M.  and  Woolverton,  M.  (1990).  "Risk  Assessment:  The  Emperor's 
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105 


219 


ELLEN  MUGMON 

S324  ELIOTS  OAK  ROAD 

COLUMBIA,  MARYLAND  21044 

(301)  596-5538 


September  7,  1993 

The  Honorable  Don  Edwards,  Chairman 
Civil  and  Constitutional  Rights  Subcommittee 
House  Committee  on  the  Judiciary 
806  O'Neill  House  Office  Building 
Washington,  D.C.  20515-6220 

Dear  Congressman  Edwards: 

The  Subcommittee  on  Civil  and  Constitutional  Rights  held  a  hearing  on  H.R.  1237, 
the  "National  Child  Protection  Act,"  on  July  16,  1993.    I  attended  that  hearing  and 
appreciate  the  opportunity  to  submit  written  comments  on  this  important  child 
protection  measure.    I  strongly  support  H.R.  1237  and  commend  you, 
Representative  Schroeder,  and  the  other  sponsors  for  introducing  it    However,  I 
believe  the  following  issues  must  be  addressed  if  children  are  to  be  adequately 
protected  by  this  legislation: 

*    The  definitions  of  "child  abuse  crime"  and  "background  check  crime"  are  under- 
inclusive.     There  are  other  categories  of  crimes  that  "bear  upon  an  individual's 
fitness  to  have  responsibility  for  the  safety  and  well-being  of  children."  (Victims  of 
Child  Abuse  Act  of  1990)     Moreover,  many  serious  crimes,  including  sexual 
crimes,  are  often  plea-bargained  to  lesser  offenses  such  as  assault  and  battery.    In 
my  view,  therefore,  comprehensive  checks  are  absolutely  necessary.    Please  see  the 
attached  relevant  materials  on  SB  825  which  was  introduced  during  the  1993 
General  Assembly  session  in  Maryland.    Please  note,  in  particular,  the  case 
summaries.    In  general,  limiting  the  scope  of  the  crimes  makes  criminal  history 
record  searches  considerably  less  effective.    It  also  contributes  to  time  delays 
because  it  hampers  efforts  to  automate  the  criminal  background  check  process  and 
because  separating  releasable  information  from  non-releasable  information  is  time 
consuming. 

■    Section  3,  subparagraph  (a)  of  the  bill  should  be  amended  to  include  arrest  as 
well  as  conviction  information.    According  to  the  U.S.  Department  of  Justice  in 
1986,  "Many  [extrafamilial  child  abusers]  have  previously  been  arrested  for  violent 
or  exploitative  acts  against  children  -  some  a  number  of  times.    However,  if  they 
have  not  been  convicted  .  .  .  laws  deny  their  employers  or  potential  employers 
access  to  their  records."    Consequently,  "the  vast  majority  of  arrested  child  sex 
abusers  are  able  to  go  from  job  to  job  with  litde  fear  that  arrests  in  connect  with 
previous  employment  will  ever  be  discovered  by  future  employers." 


220 


■  Section  5,  subparagraph  (4)  excludes  the  reasonable  use  of  corporal  punishment 
as  a  means  of  discipline  from  the  definition  of  child  abuse.    This  exclusion  should 
be  amended  out  of  the  bill  for  public  policy  reasons  and  because  it  is  unnecessary. 
There  is  no  state  where  the  reasonable  corporal  punishment  of  children  is  a  crime. 
Moreover,  while  it  is  evident  that  not  all  children  who  are  corporally  punished  are 
abused,  it  is  also  evident  that  the  corporal  punishment  of  children  is  not  a  wise  or 
safe  practice  or  one,  for  that  matter,  that  should  be  encouraged  by  the  U.S. 
Congress  implicitly  or  explicitly.    Please  see  the  attached  letter  on  SB  688  for  a 
further  explanation  of  this  issue. 

•    On  Section  5,  subparagraph  (12),  reference  is  made  to  a  poverty  exemption  from 
the  definition  of  negligent  treatment    This  exemption  should  be  stricken.    It  is 
inconsistent  with  the  Child  Abuse  Prevention  and  Treatment  Act  and  the  federal 
regulations  and  policies  adopted  pursuant  to  its  passage.    It  is  my  understanding 
that  HHS  has  notified  certain  states  that  have  this  exemption  in  their  laws  that  it 
must  be  removed  or  the  state  will  lose  its  eligibility  for  federal  funds  under  the  Act 
You  may  wish  to  contact  Madeline  Nesse  in  the  office  of  General  Counsel  of  the 
Department  of  Health  and  Human  Services  for  more  information. 

■  During  the  hearing,  the  spokesman  for  the  Boy  Scouts  of  America  commented  that 
the  "focus  of  this  legislation  should  be  employees  who  have  an  economic  interest  in 
their  position"  rather  than  volunteer  organizations.    However,  according  to  Dr. 
Gene  Abel,  a  national  expert  who  studies  child  molesters,  "[the  Boy  Scouts  have] 
got  a  real  problem  on  their  hands  .  .  .  The  Scout  leader  is  not  the  only  position  that 
a  sex  offender  can  take,  but  it  is  an  ideal  one  for  a  pedophile  .  .  .  All  volunteer 
organizations  are  troubled  ...  by  this  same  issue.    The  volunteer  organizations  are 
just  perfect  for  pedophiles."    (See  attached  reprint  of  a  Washington  Times  expose 
on  the  Boy  Scouts  of  America  and  a  transcript  of  a  recent  ABC  Television  interview 
with  a  Boy  Scout  official  on  this  subject)     Unfortunately,  in  my  opinion,  the  Boy 
Scouts  of  America  have  consistently  chosen  to  minimize  this  serious  problem, 
rather  than  adequately  screen  its  leaders.    In  this  regard,  please  note  the  cases  in 
the  attached  materials  in  which  child  molesters  with  criminal  records  were  able  to 
become  Boy  Scout  leaders  and  subsequently  harm  children  because  their  records 
were  not  checked.    Therefore,  volunteer  organizations,  as  well  as  other 
organizations  that  provide  services  to  children  should  be  included  in  this  child 
protection  measure. 

In  closing,  thank  you  for  considering  my  views.    Would  you  please  advise  me  of 
any  actions  that  are  taken  as  a  result  of  my  observations?     If  you  have  any 
questions,  please  do  not  hesitate  to  contact  me. 

Sincerely, 


Ellen  Mugmon 


221 


STATE  OF  MARYLAND 

EXECUTIVE  DEPARTMENT  tlvQSQll 
WILLIAM  DONALD  SCHAEFEH  ""tSSLTCl?— 
GOVERNOR 


OFFICE  FOR  CHILDREN.  YOUTH.  AND  FAMILIES 

301  WEST  PRESTON  STREET    BOOM  1502 
BALTIMORE    MARYLAND  2120' 

rx>n229-Aiaa 

TOD  I30'i  333    309« 
'AX  130"  333  524» 

NANCY  S   GRASMICK    SPECIAL  SECRETARY 

CMILOREN    YOl/TH    AND  f  AMIDES  MOTCh    2,    1993 

The  Honorable  Walter  M.  Baker 
Chairman,  Judicial  Proceedings  Committee 
300  James  Senate  Office  Building 
Annapolis,  Maryland  21401-1991 

Dear  Senator  Baker  and  members  of  the  Committee: 

The  Governor's  Council  on  Child  Abuse  and  Neglect  strongly  supports  SB 
825,  "Criminal  Background  Investigations  -  Child  Care  Facilities,"  which 
strengthens  this  important  child  protection  and  anti-crime  measure  by  expanding 
conviction  information  provided  to  government  agencies  and  private  employers.    It 
has  become  clear  to  the  Council  that  the  present  list  of  offenses  in  this  statute  is 
under-inclusive,  especially  in  view  of  the  fact  that  there  are  other  categories  of  crimes 
which  "bear  upon  an  individual's  fitness  to  have  responsibility  for  the  safety  and 
well-being  of  children,"  (Victims  of  Child  Abuse  Act  of  1990)  and  the  law  does  not 
require  that  a  positive  background  check  result  in  disqualification. 

Consequently,  there  are  individuals  whose  criminal  histories  indicate  that  they 
pose  a  danger  to  children  who  cannot  be  deterred  from,  or  identified  after  they  have 
sought  or  obtained  positions  of  public  trust  which  can  give  them  access  to  many 
vulnerable  children  over  long  periods  of  time.   Nor  can  they  be  penalized  for  lying 
about  their  criminal  histories.    (See  attached  case  summaries).   We  also  support 
provisions  in  SB  825  which  establish  penalties  for  violations  of  the  confidentiality  of 
criminal  history  information  ar.l  for  the  failure  to  require  criminal  background 
investigations  by  those  mandated  to  do  so. 

In  1985,  when  the  Criminal  Background  Investigations  law  was  first 
considered  by  the  General  Assembly,  the  Governor's  Task  Force  on  Child  Abuse  and 
Neglect,  which  drafted  this  child  protection  measure,  limited  the  list  of  offenses 
primarily  because  the  1985  proposal  would  have  precluded  the  hiring  of  those 
convicted  of  the  specified  crimes.   In  1986,  the  year  which  saw  the  passage  of  this 
legislation,  the  Task  Force  took  an  alternative  approach,  vesting  the  decision  as  to 
whether  or  not  to  hire  or  license  in  the  hands  of  the  employers  or  licensing  agencies 
on  the  presumption  that  they  would  act  in  the  best  interests  of  children. 

The  Task  Force  also  mandated  criminal  background  checks  based  on 
fingerprinting  rather  than  name  and  date  of  birth  checks,  not  only  because  the  FBI 
requires  fingerprint-based  checks  (Fingerprints  are  now  required  for  state  checks  as 


80-609  0-94-8 


222 


well.),  but  because  pedophiles  and  other  aberrant  adults  "have  been  known  to 
employ  aliases  and  falsified  documents  in  their  attempts  to  slip  through  screening 
procedures."  (See  "Is  There  a  Pedophile  on  Your  Payroll?"  by  Richard  Titus  and 
Carol  DeFranccs,  National  Institute  of  Justice,  1990). 

Moreover,  there  are  many  precedents  in  Maryland  and  other  jurisdictions  for 
performing  comprehensive  criminal  background  checks.    Individuals  in 
approximately  2,000  organizations  in  Maryland  are  subject  to  comprehensive 
criminal  history  checks.    Only  child  care  workers  in  Maryland  undergo  a  limited 
check  with  regard  to  specifically  listed  offenses.    Ironically,   all  public  employers  and 
certain  public  licensing  agencies,  as  well  as  certain  private  organizations  have  for 
many  years  been  authorized  by  COMAR  regulations  to  receive  full  Maryland 
conviction  data.   Furthermore,  the  Department  of  Juvenile  Services  requested 
legislation  which  was  enacted  in  1991  which  gives  DJS  the  ability  to  obtain  full 
conviction  information  from  the  FBI  because  this  statute  did  not  prevent  the  hiring 
of  inappropriate  personnel. 

As  of  1992,  the  last  year  for  which  a  summary  of  this  type  of  legislation  was 
prepared,  49  states  have  passed  legislation  regarding  criminal  background  checks  on 
child  care  workers.   The  great  majority  require  out-of-state  checks  in  recognition 
that  this  is  a  mobile  society  and  that  individuals  can  reside  in  one  state  and  commit 
crimes  in  another.    Maryland,  for  example,  is  a  small  state  which  borders  on  five 
jurisdictions. 

Most  states  also  detail  the  kinds  of  criminal  histories  that  either  must  be 
examined  and/or  prohibit  employment.   These  range  from  convictions  for  any  crime, 
except  a  minor  traffic  offense,  (Maryland  criminal  history  information  does  not 
include  traffic  violations)  to  convictions  in  special  classes  of  crimes,  such  as  crimes 
against  persons,  and  drug  offenses.   Some  states  also  include  admissions  or  findings 
of  guilt  regardless  of  convictions,  as  well  as  arrest  records.    Moreover,  Congress 
passed  the  Victims  of  Child  Abuse  Act  of  1990.  which  requires  that  employees  in 
federal  agencies  and  facilities  who  provide  child  care  services  undergo  a 
comprehensive  national  criminal  history  background  check  based  on  fingerprints. 
Under  this  law,  some  types  of  convictions  prohibit  employment,  and  all  others  may 
be  considered  in  the  decision  making  process. 

Even  with  the  limited  checks  we  have  in  Maryland,  156  persons  in  1991,  and 
141  persons  in  1992,  with  histories  of  murder,  child  abuse,  rape,  kidnaping,  as  well 
as  sexual  and  drug  offenses  were  identified  because  of  this  law.   Of  those,  35  in 
1991,  and  39  in  1992  of  those  were  picked  up  by  the  FBI  check.   It  should  be 
noted  that  these  numbers  do  not  include  individuals  who  have  been  identified  under 
DJS's  separate  statute.   These  statistics,  however,  cannot  determine  how  many 
individuals  have  been  deterred  by  this  screening  measure  from  applying  for  positions 
of  public  trust  with  regard  to  other  people's  children.   Nor  can  statistics  show  all 
those  who  would  not  have  acknowledged  their  criminal  histories  in  the  absence  of 
the  law.   This  deterrent  effect  is  present,  no  matter  what  the  time  frame  for  the 
return  of  the  check,  since  the  application  process  includes  the  completion  of  a  sworn 
statement.   Thus,  those  who  fail  to  disclose  convictions  or  pending  charges  are  guilty 
of  perjury  and  can  be,  and  have  been,  successfully  prosecuted.    In  any  case, 
applicants  and  licensees  can  begin  work  before  the  checks  are  returned. 


223 


Please  note  that  the  passage  of  this  bill  will  decrease,  not  increase  processing 
time  because  CJIS  staff  will  not  have  to  take  the  time  to  separate  out  certain 
convictions  from  others,  as  they  are  now  doing.    It  will  also  decrease  processing  time 
because  it  allows  for  the  automation  of  certain  procedures. 

Nor  does  this  legislation  require  anything  more  of  child  care  workers 
currently  covered  in  the  statute.    Decision  makers  would  only  receive  additional 
essential  information  which  would  enable  them  to  more  effectively  protect  children. 
This  legislation  takes  steps  to  streamline  the  system  and  further  protect  children, 
goals  which  those  who  provide  services  to  children  say  they  want  to  see 
accomplished. 

In  sum,  we  agree  with  the  conclusions  of  Howard  Davidson,  Director  of  the 
American  Bar  Association's  Center  on  Child  Advocacy  and  Protection  "that  criminal 
record  screening  is  an  important  .  .  .  weapon  in  the  arsenal  which  is  available  to  the 
government  and  private  employer  to  help  protect  children  from  maltreatment  in  out- 
of-home  care.   A  mandatory  screening  law  suggests  that  as  a  public  policy,  people 
whose  backgrounds  would  render  them  clearly  inappropriate  to  be  placed  in 
positions  of  trust  and  authority  over  children  will  not  be  tolerated  in  the  child  care 
system.   Coupled  with  an  effective  pre-employment  screening  interview  and 
scrupulous  background  check  of  references,  the  well  publicized  routine  of  a  criminal 
record  check  becomes  a  device  that  should  dissuade  many  pedophiles  or  other 
disturbed  people  from  entering  into  a  child  care  or  youth  services  position."   We 
therefore  urge  the  Committee  to  give  SB  825  a  favorable  report. 


Thank  you  for  considering  our  views. 


Sincerely, 

Ellen  Mugmon,  Chairman 
Legislative  Committee 


224 


FACT  SHEET 
CRIMINAL  BACKGROUND  INVESTIGATIONS  -  CHILD  CARE 

FACILnTES 

SB  825 

SUPPORT 

Prepared  by  Ellen  Mugmon 

for  the  Governor's  Council  on  Child  Abuse  and  Neglect 

Q.   Why  does  the  Criminal  Background  Check  law  list  only  ten  kinds  of  crimes? 
(Three  additional  categories  were  added  during  the  1991  session.) 

A.   The  original  1985  version  of  the  bill  would  have  prohibited  people  with  specific 
criminal  convictions  from  working  in  child-related  jobs. 

Individuals  in  approximately  2,000  private  organizations  in  Maryland  are  subject 
to  comprehensive  criminal  history  checks.    Only  child  care  workers  undergo  a 
limited  check  with  regard  to  specifically  listed  offenses. 

Q.     Why  does  the  law  need  to  be  changed  to  include  other  crimes? 

A.     There  are  other  categories  of  crimes  which  "bear  upon  an  individual's  fitness  to 
have  responsibility  for  the  safety  and  well  being  of  children,"  (Victims  of  Child 
Abuse  Act  of  1990)  and  the  statute  does  not  require  that  a  positive  background 
check  result  in  disqualification. 

Q.   Are  criminal  background  checks  constitutional? 

A.   Tou  don't  have  the  right  of  privacy  with  judicial  proceedings  of  public  record." 
(Barbara  Mello,  Staff  Attorney  for  the  ACLU  of  Maryland  in  1986) 

The  child's  basic  right  to  protection  and  safety  overrides  the  adult's  desire  to 
obscure  his  criminal  record  from  scrutiny. 

As  of  1992,  the  federal  government  and  49  states,  including  Maryland,  have 
enacted  legislation  regarding  criminal  background  checks  and  child  care  workers, 
recognizing  that  employers,  licensing  agencies,  and  parents  have  a  reasonable  right 
to  know  whether  or  not  people  to  whom  children  are  entrusted  on  a  daily  basis  have 
criminal  histories  which  indicate  they  pose  a  danger  to  children. 

Q.    How  can  SB  825  help  to  further  protect  children  in  Maryland? 

A.  The  attached  summary  of  cases  describes  children  who  would  have  been 
protected  had  the  criminal  histories  of  their  caretakers  been  known  and 
demonstrates  why  the  list  of  offenses  in  current  law  is  under-inclusive  and  why 
employers  and  licensing  agencies  presently  do  not  have  sufficient  ability  to  exercise 
necessary  caution  when  selecting  individuals  for  position  of  public  trust  with  regard 
to  other  people's  children. 


225 


CASE  SUMMARIES  -  SB  825  -  SUPPORT 

Prepared  by  Ellen  Mugmon 

for  the 

Governor's  Council  on  Child  Abuse  and  Neglect 

In  1989,  Linda  Johnson  was  arrested  and  later  convicted  in  Washington,  D.C.  for 
murdering  a  nine  month  old  baby  under  her  care.  She  had  slammed  the  baby's  head  against 
a  wall  numerous  times  because  the  child  would  not  stop  crying.  Police  also  discovered, 
after  sending  her  fingerprints  to  the  FBI,  that  she  had  a  long  arrest  and  conviction  record 
in  Louisiana,  which  included  forgery,  and  burglary,  as  well  as  arrests  for  criminal  neglect 
and  armed  robbery.  (The  Washington  Post.  "Ex- nanny  Had  Record  Before  Slaying," 
February  2,  1989)  None  of  her  prior  convictions  in  Louisiana  would  have  triggered  a 
positive  check  under  the  present  statute. 

In  1988,  the  Juvenile  Services  Agency  unknowingly  hired  a  convicted  felon  as  a 
supervisor  at  the  Boy's  Village  in  Prince  George's  County.     During  his  employment 
there  he  helped  four  boys  to  escape  from  the  facility.   He  had  spent  more  than  ten  years 
in  prison  for  robbery,  burglary,  and  receiving  stolen  goods.   JSA  officials  were  unaware 
of  his  past  criminal  history,  even  though  he  had  undergone  a  criminal  records  check 
because  the  crimes  for  which  he  was  convicted  are  not  included  in  the  statute.    (The 
Sun.  "Agency  Screening  Can't  Spot  Felons  During  Hiring,"  February  26,  1989).   While 
DJS  can  now  screen  this  individual  out,  because  of  the  passage  of  a  law  in  1991  to 
remedy  this  situation,  other  child-serving  organizations  cannot. 

In  1989,  New  York  attorney  Joel  Steinberg,  was  convicted  of  first  degree 
manslaughter  in  the  notorious  beating  death  of  his  illegally  adopted  daughter,  Lisa. 
Incredibly,  Steinberg  and  others  like  him  can  pass  a  Maryland  criminal  background 
check. 

In  January  1988,  Martha  Guba,  a  family  day  care  provider  in  Virginia,  was 
convicted  of  felony  child  neglect.   She  had  given  a  six  month  old  baby  an  antidepressant 
to  stop  him  from  crying.   The  baby  died  as  a  result.   But  it  was  not  her  first  crime. 
Police  found,  after  sending  her  fingerprints  to  the  FBI,  that  under  six  different  aliases, 
she  had  been  convicted  in  two  other  states  of  larceny,  vagrancy,  disorderly  conduct,  and 
grand  theft,  as  well  as  the  neglect  of  her  own  infant  children.    (Washington  Post,  "Girl's 
Death  Highlights  Need  for  Home  Day  Care  Regulation,"  January  17,  1988).   None  of 
these  convictions,  even  the  ones  for  child  neglect,  would  have  engendered  a  positive 
criminal  background  check  in  our  state. 

A  cult  leader  and  several  of  his  followers  were  indicted  for  conspiracy  to  deny  the 
civil  rights  of  29  children  who  they  allegedly  held  in  involuntary  servitude  in  Oregon 
and  California.   Their  alleged  acts  culminated  in  the  beating  death  of  an  eight  year  old 
girl.   (The  Sun,  "Eight  in  Group  Accused  of  Enslaving  Children,"  February  9,  1991). 
Again,  there  is  no  reference  to  this  type  of  crime  in  our  law. 

Diane  Jones  was  convicted  in  Baltimore  in  July,  1992,  of  battery  for  assaulting 
two  disabled  patients  in  a  Catonsville  nursing  home.   Jones  was  "forbidden  to  work  with 


226 


senior  citizens  or  children"  by  the  court.    Nevertheless,  she  can  pass  a  criminal 
background  investigation  in  this  state  for  child  care  workers,  since  battery  is  not  one  of 
the  listed  crimes.    fThe  Evening  Sun.  "Nurse's  Aid  Jailed  for  Assaults,    July  28,  1992). 

In  1969,  George  Slater  was  charged  in  the  District  of  Columbia  with  first  degree 
burglary,  sodomy,  rape,  and  robbery.    He  pled  guilty  to  the  burglary  count,  and  the 
remaining  charges  were  dismissed.    In  1970,  in  Montgomery  County,  Slater  was 
charged  with  assault  with  intent  to  rape,  assault  and  battery,  robbery,  and  larceny.    He 
pled  guilty  to  larceny.    All  other  charges  were  dismissed.    Mr.  Slater  could  pass 
Maryland's  criminal  background  check  law  and  work  with  children.    (See  Carolyn  W. 
Cramer  v.  Housing  Opportunities  Commission  of  Montgomery  County,  1985). 

In  February  of  last  year,  in  San  Francisco,  a  television  station  exposed  a  meeting 
of  a  pedophile  group,  the  North  American  Man  Boy  Love  Association,  which  had  been 
holding  its  meetings  at  a  local  library.    Its  spokesman,  Alan  Davis,  told  reporters  that  no 
one  in  their  organization  had  ever  been  arrested.    But  it  was  later  discovered  that  his 
real  name  was  Nicholas  Alan  Palmer,  and  that  he  had  been  previously  convicted  of 
soliciting  sex  from  a  nine-year-old  boy.    (See  Washington  Tunes,    Pedophile  Group 
Shakes  Up  City,"  February  10,  1992).   Mr.  Palmer  is  an  example  of  why  criminal 
background  checks  based  on  fingerprints  are  necessary. 

A  Baltimore  County  mother  who  left  her  two  young  children  home  alone  was 
convicted  of  reckless  endangennent  in  connection  with  their  deaths.    (The  Sun.   Mother 
Admits  Reckless  Endangc-ment,"  March  20,  1992).    Since  reckless  endangerment  is  not 
one  of  the  list  of  crimes,  her  conviction  would  not  be  picked  up  under  present  law. 

Dennis  Miller,  a  Virginia  elementary  school  teacher,  was  convicted  of  assault  and 
battery  for  fondling  a  student.   Local  school  systems  in  Maryland  would  never  find  out 
about  his  conviction  in  Virginia  should  he  apply  in  Maryland  for  a  teaching  job.    (The 
Washington  Post,  "Manassas  Teacher  Convicted  of  Fondling  Student,"  July  3,  1992). 

An  18  year  old  Washington  man  was  convicted  of  assault  with  a  dangerous 
weapon  in  the  severe  scalding  of  his  6ve  month  old  daughter.    fThe  Washington  Post, 
"Man  Guiltv  in  Scalding,"  January  27,  1993).    His  conviction  would  not  engender  a 
positive  check  in  Maryland. 

A  33  year  old  Westminster  man  who  kicked  his  five  year  old  son  down  concrete 
steps,  severely  injuring  him,  could  also  pass  a  criminal  background  check  in  this  state 
because  he  agreed  to  plead  guilty  to  battery  instead  of  child  abuse. 

A  twenty  year  old  Fairfax  County  babysitter,  Jennifer  Salas,  was  convicted  of 
involuntary  manslaughter  of  a  seven-month-old  Virginia  boy.   Salas  had  thrown  the 
baby  into  a  playpen,  cracking  his  skull.    (The  Washington  Post,  "A  Nightmare  Come 
True,"  June  13,  1992).   Ms.  Salas'  conviction  would  be  missed  under  current  law. 

A  Howard  County  camp  employee  was  convicted  of  molesting  several  children 
under  his  care.   He  had  been  previously  convicted  in  Virginia  of  assault  and  battery  as  a 
result  of  a  sexual  child  abuse  complaint.   His  prior  out-of-state  convictions  would  not  be 
picked  up  under  present  law. 


227 


STATE  OF  MARYLAND 

EXECUTIVE  DEPARTMENT 

WILLIAM  DONALD  SCHAEFER 
GOVERNOR 


1 


OFFICE  FOR  CHILDREN    YOUTH.  AND  FAMILIES 

301  WEST  WESTON  STREET    ROOM  ISO? 
BALTIMORE    MARYLANO  71201 
I30'IZ««I«0 
TOO  1301)  333  30M 
FAX  (301 1  333  «« 

NANCY  S    QRASMICK    SPECIAL  SECRETARY 
CHILDREN.  YOUTH.  ANO  FAMILIES 


March  2,  1993 


The  Honorable  Walter  M.  Baker 
Chairman,  Judicial  Proceedings  Committee 
301  Senate  Office  Building 
Annapolis,  Maryland  21401-1991 

Dear  Senator  Baker  and  members  of  the  Committee: 

The  Governor's  Council  on  Child  Abuse  and  Neglect  strongly  opposes  SB 
688,  "Child  Abuse  and  Neglect  -  Corporal  Punishment,"  which  excludes  the 
"reasonable  use  of  corporal  punishment  as  a  means  of  discipline  from  the  definitions 
of  child  abuse  and  neglect."  We  oppose  this  bill  for  the  following  reasons: 

1.  Current  law  already  permits  parents  to  corporally  punish  their  children,  and  to 
physically  injure  them  when  doing  so.   Only  physical  injuries  which  occur  as  a  result 
of  cruel  or  inhumane  treatment  or  malicious  acts  "that  indicate  that  the  child's  health 
or  welfare  is  harmed  or  threatened"  are  prohibited  in  Article  27,  Section  35  A,  and 
only  those  physical  injuries  of  a  child  that  "indicate  that  the  child's  health  or  welfare 
is  significantly  harmed  or  at  risk  of  being  physically  harmed"  are  considered  abuse  in 
the  Family  Law  Article.   Thus,  in  our  view,  these  statutes  create  a  high  threshold  in 
defining  the  physical  abuse  of  children.    Please  note  that  many  other  states'  statutes 
define  physical  abuse  as  non-accidental  injuries  for  the  purpose  of  reporting  with  no 
other  caveats. 

2.  Hence,  the  right  to  corporally  discipline  one's  child  in  Maryland  has  been  and 
continues  to  be  a  defense  to  what  would  otherwise  be  an  assault  and  battery.   It  is 
further  justified  under  the  label  of  "Domestic  Authority."  According  to  the  Court  of 
Special  Appeals,  in  Anderson  v.  State,  this  privilege  remains  with  regard  to  children 
"although  other  and  earlier  exercises  of  domestic  authority  involving  relationships 
such  a  master-apprentice  and  husband-wife  have  been  relegated  to  the  dustbin  of 
history." 

3.  Notwithstanding  the  acceptance  of  physical  punishment  of  children  in  our  laws, 
research  on  this  subject  shows  that  the  approval  of  corporal  punishment  of  children 
has  "important  implications  for  the  understanding  and  prevention  of  the  physical 
abuse  of  children  ....  Although  most  physical  punishment  docs  not  turn  into 
physical  abuse,  most  physical  abuse  begins  as  ordinary  physical  punishment .... 


228 


Moreover,  being  the  subject  of  physical  punishment  trains  future  parents  in  the  use 
of  violence"  rather  than  in  alternative  disciplinary  techniques  which  are  far  more 
effective.   Studies  also  "show  that  the  more  physical  punishment  that  parents 
experience  as  children,  the  higher  the  proportion  who  engaged  in  abusive  violence 
toward  their  own  children  and  their  own  spouses,  and  the  more  parents  used 
ordinary  physical  punishment,  the  greater  the  percentage  who  were  worried  that 
they  might  get  carried  away  to  the  point  of  child  abuse."  ("Physical  Punishment  and 
Physical  Abuse  of  American  Children:  Incidence  Rates  by  Age,  Gender,  and 
Occupational  Class,"   in  Physical  Violence  in  American  Families  by  Barbara 
Wauchope  and  Murray  Straus,  1990). 

4.    Furthermore,  public  opinion  is  consistent  with  research  findings.    According  to 
the  National  Committee  for  the  Prevention  of  Child  Abuse  1992  public  opinion 
survey,  the  vast  majority  of  respondents  felt  that  "physical  punishment  is  detrimental 
to  a  child's  well-being,  .  .  .  and  only  20%  believed  that  physical  punishment  never 
leads  to  injury.    Clearly,  the  physical  punishment  of  children  is  a  significant  part"  of 
the  explanation  for  the  high  rate  of  physical  abuse  of  American  children  (Wauchope 
and  Straus). 

While  it  is  evident  that  not  all  children  who  are  spanked  are  abused,  it  is  also 
evident  that  the  corporal  punishment  of  children  is  not  a  wise  or  safe  practice,  or 
one,  for  that  matter,  that  should  be  encouraged  or  touted  by  the  General  Assembly 
implicitly  or  explicitly.   In  any  case,  parents  who  discipline  their  children  in  this 
manner  are  more  than  sufficiently  protected  under  present  laws  designed  to  protect 
children.    Consequently,  there  is  no  need  for  this  bill.    In  essence,  it  is  redundant. 
We  therefore  urge  the  Committee  to  give  SB  688  an  unfavorable  report. 

Sincerely, 


Ellen  Mugmon,  Chairman 
Legislative  Committee 


229 


Scouting's  sex  abuse  trail  leads  to50  states 


Bv  Pamc*  Bovw 


For  parents,  the  local  Boy  Seoul 
troop  u  a  safe  place  to  send  the  kids. 
For  child  molesters,  its  an  ideal 
place  to  meet  them 

The  result:  on  an  average  of  more 
than  once  a  week  for  the  past  two 
decades,  a  Cub  Scout.  Boy  Scout  or 
Explorer  has  reported  being  sex- 
ually abused  by  a  Scout  leader 

An  investigation  by  The  Washing- 
ton Times  shows  that  at  least  1.151 
Scouts  have  reported  being  abused 
by  their  leaders  over  the  past  19 
years,  maJung  sex  abuse  more  com- 
mon in  Scouting  than  accidental 
deatns  and  serious  injuries 

In  that  time,  at  least  416  men  have 
been  arrested  or  banned  from  Scout- 
ing for  molesting  the  boys  in  their 


care—  and  experts  say  the  real  num- 
ber of  abusers  and  victims  is  prob- 
ably several  tunes  higher. 

Those  are  among  the  findings  of  an 
investigation  that  rurned  up  abuse  by 
Scout  leaders  in  all  SO  states  and  the 
District  of  Columbia 

"1  was  naive  to  think  the  Boy 
Scouts  was  such  a  safe  place.'  said 
the  mother  of  a  Maryland  bov  abused 
by  his  Scoutmaster  "1  thougnt  the 
Boy  Scouts  was  a  sanctuary' 

In  fact,  the  examination  of  sex 
abuse  in  Scouting  reveals  a  long- 
standing paradox  for  the  naoons 
most  revered  youth  group:  for  80 
years  the  Boy  Scouts  of  America 
have  given  boys  some  of  the  best  ex- 
periences of  their  lives,  but  for  SO 
years  some  men  have  used  the  Boy 
Scouts  of  America  to  have  sexual  re- 
lations with  those  boys. 


"That's  been  an  issue  since  the  Boy 
Scouts  began."  said  James  Tarr.  the 
nations  Chief  Scout  ExecuDve  from 
1979  through  1984 

The  Scouts  say  the  number  of 
abuse  cases  is  low  considering  ail 
their  volunteers.  They  have  alio 
taken  steps  to  fight  the  problem. 

The  Times  examined  the  problem 
by  reviewing  internal  Scout  records 
and  tens  of  thousands  of  pages  of 
court  records  from  around  the  coun- 
try, including  confessions  of  molest- 
ers and  testimony  from  children;  by 
interviewing  molesters,  families  of 
victims.  Scout  leaders,  sex  abuse  ex- 
perts an  J  awyers:  and  by  analyzing 
the  cases  on  a  computer  database. 

Among  the  findings 

•  Each  year  from  1971  through 
1989.  an  average  of  at  least  21  male 
Scout  leaders  and  camp  workers 


were  banned  from  Scouting  -or  ar- 
rested for  sexual  misconduct  with 
Cub  Scouts.  Boy  Scouts  and  Explor- 
ers The  acts  ranged  from  proposing 
sex  acts  and  fondling  boys  in  their 
sleep  to  performing  oral  sex  and  in- 
tercourse with  the  children, 

•  During  that  tunc  an  average  of  at 
least  60  Scouts  were  reported  abused 
each  year,  with  some  of  them  abused 
dozens  of  tunes  before  telling  any- 
one. Experts  and  Scout  off  icuus  say 
those  figures  are  probably  a  fraction 
of  all  the  abusers  and  victims,  since 
most  child  sexual  abuse  iszrt  re- 
ported and  most  abusers  arem 
caught 

"1  would  guess  that  tne  number  of 
actual  cases  is  even  far  greater  than 
that."  said  Anne  Conn,  director  of  the 

tet  ABUSE,  pap  2 


*•>-■;  v  .     "...   \iffm  „"««•: 

■-  Evwy  day.  cornrnunrtws  ail  ow 
its*  country  bi  b  sornenow  touched 
by  to*  pood  votkj  of  the  Boy     £T 
Scoua  of  America.  And  every  ■  *V» 
day.  cfttfnxi  in  comrnuruba*  «l   '\ 
over  the  country  go  through  the  *£.' 
haror  of  sax  abuse.  For  many  t*  V 
people,  the  Scouts  are  supposed 
to  be  •  haven  from  such  honors.-** 
>  From  May  20-24. 1991.  The  l"Jpt: 
-  Washinoion  Times  ran  a  five-part  - 
senea  about  sex  abuse  In  the  Boy  " 


i      'ABOUT  THte  REPRiKnr  :B§^" 

Seouu  at  An»nca-;The  eert«s,     **\n  every  sate  and  the  Distort  cl         motastere.  how  they  seduce  t 
csied  "Scouts  tttpgCgjomi" — -ColUmWa.-AI  ■  tone  when  the"  Boy"  how  the  abdsraflectaTStBoYirii 
how  child  molesters  wrfhe  .f  ...  .  Scouts,  ol  ^mencs  win  saying;  •  J.»and  hewthe  mjsttr— 
country's  most  populacyputh  fe?  ithiy  had  two  to  10  reports  ote«->.V responded,  to  the* 
organization  totjjve  eexwlth  Sk'-  abuse  each  year,  this  protect.:  ■  „     are  tales  about  the  boy  v 
children..  -lZ&3*&££?s'o?   bund  that  over  tne  past.1 9  years.,*  rwnsetf  after  being  abu» 
.  LThts  protect  began  witji  •>»*)»«.  at  leasMi  e  Scout  leaders  have  ■<•■  ■-.  man  who  may  be  tne  most  prolifi 
lawsuit  by  a  vlrginiaiby jfro  had  ."  been  accL-sed,rtnx>teglnoTrore^kmctestef.lriscotang,  the  S 
been  moiestea  by  rus'Scput . v«Er  -  than  1  v000  Scouts. rviisSiiji^  >-^l'.  leaders'who  uied  to  keep « 
leader.  It  grew  into  a  six-monffr-t*',     The  senes  includes  34  stories.'*-'--' cases  quiet  and  the  experts  whoj 
mvwooaoon  that  uncovered  /-33>-  plus' graphics,  mat  show'why  -•  ^U  .developed  a  program  to  curbjjj 
reports  ol  abuse  by  Scout  leaders.    Scouting  is  so  attractive  to '  ."     iCS ■■  abuse.  <*W.rwi$ti» 


^'SsBSEs'SsSfJ 


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Thl*  transcript  has  not  yet  btco  chocked  against 
videotape  and  cannot,  for  that  reason,  bo 
guaranteed  aa  to  accuracy  of  speaker*  and  spelling. 
(JPM) 

DAY  ONE      Transcript  #115 

June  14,  1993 

FORREST  SAWYER.  ABC  Newe:  Gcod  evening.  I'm 
Forrest  Sawyer  and  thi*  <a  D«y  On*  Tonight,  a  Day  One 
investigation  reveals  a  secret  about  the  Boy  Scouts  of 
Amanee 

FORMER  DELAWARE  SCOUT    Ke  liked  little  boy* 

I  wee  a  little  boy. 
SAWYER:   ivoiat-ovtr]  Day  One  uacovsrs  Tiles  that  saow 
for  rlsnarias  the  Bey  Scouts  have  known  scout  troop  leader* 
who  molest  chiHren. 

BlJkJCZ  LEWIS.  Bey  fleouts  Spokesman     Oa*  ceae 

is  one  too  many. 

SAWYER:   Well.  then,  you  v*  pot  iibmi  ■  hundred  on 

average  a  year.  That's  s  nundrec  time*  worse  problem. 

.  ueioe  over)  TVoy  still  don  t  «uii  you  to  uiw  about  tt. 

KEN  LANNING,  FBI  Pedophile  Expert:  There  s  no 

human  being  tntinr  to  acdueo  than  on  edoieeoeBt  boy. 

FORMER  DELAWARE  SCOUT    !  m*an.  I  have  three 

children  myeelf.  and  I  wouidn  t  even  have  them  in  the 

Boy  Scouts. 

SAWYER:  Ivo-.ofOtMTJ  Juauc*  la  America:  whs  can  afford 
it? 

MAN    The  only  way  you  can  have  -ustic*  in  America  ia 

if  you  hare  money. 
SAWYER:    (uoxx-ovtrj  And  if  you  don't,  you  get  a  public 
defender,  fighting  a  system  that's  falling  apart. 

RICK  TESBTER  (till.    I  *-o  to  court  nrery  day  facing 

overwhelming  odds. 

JOHN  HOCKENBEHKY,  ABC  Newe:    WW,  wwuld 

the  founding  fathers  aay  about  the  system? 

Judge  CALVIN  JOHNSON:  They  would  be  absolute- 
ly appalled. 
SAWYER:  (voie+ootr)  Alto  tonight,  they're  powerful,  ter- 
rifying, deadly.  Most  people  run  away  from  tornadoes,  but 
this  man  runs  after  them. 

WARREN   FATDLEY.  Photographer      Dave's  the 

Terminator"  of  norm  chasing. 
SAWYER:  (vo*e*-ov*H  Tonight,  the  storm  chaser,  on  the 
road  in  search  of  tne  perfect  tornado. 
ANNOUNCER:  From  ABC  New*.  Forrest  Sawyer.  Sheila 
MaeVicar.  John  riochen berry ,  Michel  McQueen.  Jay  Schad- 
ier.  and  John  MrKsTiri*     this  is  Day  One. 
[Commercial  brtaM] 

Be  Prepared 

ANNOUNCER:  D«y  On*,  with  Forrest  Sawyer,  con- 
tinue*.   

FORREST  SAWYER:  We  begin  tonight  with  a  stccy  that 
could  touch  nearly  every  family  in  America  and  anyone 
who's  ever  put  on  a  Scout  uniform.  First,  listen  to  this  let- 


ter the  Boy  Scouts  of  Amino  wrou  to  us.  It  says,  The 
Soy  scouts  r.as  been  tne  cataiyat  for  much  of  the  aware- 
ness and  discussion  of  child  acuta  that  has  emerged  in 
recent  years.''  It  is  true,  tna  Boy  Scouts  have  maae  en  ef- 
fort to  educate  Scouts  and  their  parents  about  the  oangvs 
of  child  abuse,  but  that'e  not  tne  wnole  truth  A  four -month 
Day  On*  lnveaugation  has  reveeled  that,  for  most  of  this 
century,  the  organization  has  kept  secret  files  en  hundreds 
of  troop  leaders  scruseci  of  being  periii|i~iiia*  child 
molesters.  But  even  though  they  knew  they  had  this  prob- 
lem, the  Boy  Scouts  chose  to  do  little  shout  it.  In  fact,  they 
kept  the  truth  from  fsmilies  who  put  then-  trust  in  tne 
scoutmg  tradition. 

(Boy  SeoutM  promotional  vidto) 
HENRY  FONDA:     When  you  help  start   a  scout 
troop,  there*  no  guarantee  one  of  the  boy*  grow  up 
to  be  an  actor. 

ASTRONAUT:  Co  to  the  moon,  twtos. 
HENRY  AARON:  Hit  755  home  runs. 
Pre*.  GERALD  FORD:  Grow  up  to  be  president 
But  you  never  know. 
SAWYER:  lvoxc*-ou*r)  It  I  part  of  the  American  dream. 
to  be  a  Bov  Scout,  to  *w*ar  to  be  physically  strong  and 
morally  straight,  to  issrs  to  stand  up  for  what  you  be- 
lieve in.  Every  year,  four  million  bova  share  the  dream 
that  for  a  few  of  them,  it  will  become  a  nightmare,  the 
Boy  Soouta  of  America  is  a  target  for  pedophile*. 
KEN  LANNING.  FBI  Pedophile  Expeat:  I  think  the 
Bay  Scout*  is  on*  of  many  organizations,  in  my  opinion, 
whicn  is  potentially  highly  vulnerable.  There  is  no  hu- 
man being  on  th*  face  of  the  earth  easier  to  seduce  than 
an  adolescent  boy  in  his  early  teens.  They  hsve  an  ease 
of  sexual  arousal,  they're  curious,  theyr*  exploring 
their  aexuality.  On*  of  th*  things  that  you're  always 
wnrbing  tnwnirla  is  gatnng  tha  child  tn  have  tn  ehang* 
clothing  or  spend  th*  night  with  you.  The  Boy  Scouti 
give  you  that  opportunity,  you  take  overnight  hike*.  An 
other  thing  about  the  Boy  Scout*  ia  that  it  provides  i 
t—»*»'-[  nsthsauB  which  thee*  offenders  always  need. 
SAWYER;  [voicr-ovtr]  The  Bay  Scouts  of  Amenc 
mien  child  mnleetatwn  is  a  problem,  but  they  say  the: 
only  became  awsre  of  it  in  1985.  after  one  alleged  ess 
made  national  headline*. 

(inurvuwuig]  Were  there  no  significant  problem*  iz 
side  she  Boy  Scout*  before  19837 
BLAKE  LEWIS.  Boy  Scouts  Spokesman-    Not  thi 
we're  ewere  of.  no. 
SAWYER:  None  at  all? 
Air.  LEWIS:  Not  that  we're  ewer*  of. 
SAWYER:     In  fact,  the  Boy  Scouts'  own  confident) 
records,  obtained  by  Dsy  One.  show  they've  beam  ewe: 
of  the  significant  problem  inside  their  own  argnnuatx 
fox  dorados.  The  eecrct  files,  from  the  year*  1071 
1991,  show  th*  Boy  Scout*  banned  ever  1.400  peopls  f 
abuse  or  suspected  abuse.  The  file*  shew  that  abuse 
served  for  years  without  being  detected,  and  whan  th 
were  BSsasjM    ilia  Suuuis  eugsged  in  ooveruue  to  ke 
their  imaged* as. 

(voux-ovrrj  Shortly  after  it*  founding  in  1910.  i 


246 


Bey  Seoul*  of  American  oeean  aaeou-.g  the  confriennn 
file*  They  were  to  eerve  as  the  WIMI  ceanng  r.cue* 
of  people  who  ahould  cot  be  u»w  in.  EacE  d*» 
voirniiori  nimt  w*a  to  be  cheeaed  agamot  the  file*, 
and  anyone  "UTn'trH  ■*  ai  *.o  be  i:*tea  to  prevent  aim 
from  rejoining.  Our  inver.ifit-.cr.  bona  thii  ryrtex  »•• 
l-  from  : »  _mj  • 

"CARL  B':  I'm  very  th.-u.ed  ibout  the  fact  that, 
throughout  sty  toouting.  14  vein  of  eooutina.  there 
wen  18  lag.**,  young  men  :n»t  made  Eagle  while  I 
wet  either  ucRiat  eeouimaiier  or  icouttti liter. 
SAWYER.  .Loiof-oiwr/  Cert  B..  a  eonvjeiac  pedophile 
who  agreed  tn  talk  tn  ua  if  w*  didn't  um  hu  laat  neme. 
Carl'*  aerving  SO  yean  m  e  Virginia  pnaon.  Before  tnau 
-•  wiv»d  m  :".vf  niff»r»n:  eonui  '.roope.  If  hu  firet  troop 
id  Wilmington,  Delaware  had  enecked  Car.  a  Sivy 
record,  they  mey  n»vr  Uamari  -,»  wu  court-martialed 
6*  moieaung  young  ooy* 

,'OmpAic         "Genevo/        —inrr.m/irfini  i/iaranu 

.inemu-.V 
SAWYER      You  bed  been  reieeeed  rrwn  Mae  Navy  fnr 
feaniei  ehuae 
-CARLS*:  Yea. 

LAWYER;   3id  you  worry  that  wnen  you  applied  to  the 
Boy  Seouu  that  the  Bey  Scou'.e  might  put  the**  two  to- 
rrtner.  might  come  up  with  that  fan'' 
•CARL  B":    I  dent  thick  it  occurred  to  me    It  turned 
out  not  to  be  a  problem. 
SAWYER.  They  didn't  cheek? 
•CARLB':  They  didn't  eheei 

SAWYER.  ,\-ete*-ov€ri  Over  :n:  couree  of  a  year.  Carl 
■nmtrtfi  eeveral  boy*  When  one  of  them  finally  told  hie 
>choo>  pnaupao.  Carl  *u  allowed  to  quietly  loeve  uwn. 
FORMER  DELAWARE  SCOUT  Ke  liked  hitle  boy*. 
'.  wee  e  little  boy,  and  he  dad  whatever  he  had  to  to 
make  that  work.  He  a  a  lick  trade. 
SAWYER  Were  yuu  efnud  u."  proeecuuoc? 
•CARL  B"  He,  at  the  v.m*  1  waeM.  It  waa  kind  of  put 
under  the  rug,  nobody  oeali  »uh  ...»  .»»•. 

WYER;     ,'peaae-ewer/  And   nooody  dealt  with  the 
:rtuaa  Buffered  by  the  cnildren^jiittei. 
FORMER  DELAWARE  SCOUT.    It  bun  me.  It  hurt 
me  bad,  1  mean.  I  have  three  children  luywmll  aud  I 
wouldn't  even  have  them  in  the  Boy  Scouts. 
SAWYER;  If  there  is  as  alleged  instance  of  child  uu» 
reported,  ia  it  true  that  the  Boy  Seouu  of  America  L- 
wire  contact  law  enforcement  agenctee? 
Mr.  LEWIS.  Ye*.  That'*—  thaf  i  the  practice. 
SAWYER:  in  every  emgle  mrtance  thi*  baa  been  true? 
Mr.  LEWIS    To  the  beet  of  my  knowledge,  yea. 
SAWYER:     So  yon  now  of  no  tinge  injury  any- 
where, a  Boy  Seouu  leader  ha*  aimpiy  left  the  troop, 
gone  to  iivr-— '  place,  eomeume*  without  the  parent* 
even  being  tald? 

Mr.  LEWIS  To  the  beet  o:  ay  knowledge,  any  time 
we've  become  aware  of  *  eitu  alios,  it*  going  to  be 
reported.  It'i  pong  to  be  reported  to  u*  eunreement  of- 
ft~.u  That  tndrndual'i  ngiatration  u  going  to  be  die- 
eanonued  and  theVre  going  to  be  placed  into  the  u> 


eugihlo  volunteer  file 

SAWYER      .coict-oixrj  I;   fact.   Lan   o.   wu   never 

reported  to  the  police  anc  .-.;i  name  »u  not  ended  to 

the  natlonaJ  heedquarur*    confidential  fUem.  ao  Carl 

waa  able  to  move  tnrougn  tnree  other  Boy  Scout  troop  a. 

from  Connecticut  to  Rhode  I  aland.  e.w*y*  appearing  to 

be  the  perfect  acoutmaeter. 

PARENT  OF  FORMER  SCOUT    1  would  ear  not  only 

waa  he  chanrmeuc  and  a  good  eeout  leader,  he  put  thi* 

kind  of  dedication  into  anyuung  that  he  did. 

Mr.  LANMNG:     People  think  of  ■*'■*  mok«.uri  a* 

bemg  evil,  hnmbl*  people,  and  thi*  guy  euu  nil  graa*. 

and  work*  hard  on  the  job.  and  he  goae  to  church  on 

Sunday.  He  aeemingiy  coeen  t  have  any  of  theae  other 

•j-tita  and  cnarecterurue*  that  we  would  laeotify  with 

aomecody  a*  evtl  aa  a  child  moi eater 

SAWYER:    Ivovwoutr)  By  i960.  Carl  had  a  bono  on 

•ha  weter  in  Bamngton.  Rhode  I  aland.  He  ukee  to  uke 

an  Seouu  out  on  hi*  beat.  The  oovr  parent*  had  grown 

totruat  him. 

PARENT  OP  FORMER  SCOUT:    The  night  before 

the  i -indent  with  my  aon.  actually  Carl  came  to  my 

luaiaa.  aat  at  my  table,  ate  cur  -'"*»'»*«    m  my  living 

room  piayed  my  organ,  tang  with  my  children,  and  th»« 

the  rxnrt  day  attempted  to  moiert  them. 

FORMER  RHODE  ISLAND  SCOUT     My  ftrn  un- 

eaey  feeling  with  him  it  when  we  went  iwimsunf  »^^ 

he  wanted  everybody  to  akavry-drp,  and  I  waint—  1 

Aidnt—  I  »nm  tnut  thet  at  all.  And  loeijlailj  juat 

took  off  their  nathmg  *uha  and  went  mnmoi,  and  I 

-jrt  walked  off 

SAWYER:  ,';. oicf-oK- '  Mentha  laur,  Carl  took  a  man 

direct  approach  When  ne  wee  rejected.  he>  wermwl  thi 

boy  not  to  yl V 

FORMES  RHODE  ISLAND  SCOUT   He  eaid.  *Don' 

mentwri  this  to  anyone.  No  one  will  belie**  you."  It' 

•»-err  mtrmumtme, 

SAWYER:   /i>ote*-ev*r;  Bat  he  did  tail  hie  father,  wh 

called  the  poliee  and  the  Boy  Scout  trorp  c 

PARENT  OF  FORMER  SCOUT.  The 
though*  that  Cerl  wee  the  bee*  thing  te  eoeae  M  *ow 
laoe  atnee  ice  cream,  and  I  earn*  bete*  the  eommt 
tee  and  it  w«a  uke  1  waa  ee  triaL  We  ■■»  eeneaderi 
wrong  in  thia. 
V' SAWYER.  You  muet  have  been  a  heak  ef  a  eee> 
1  eerier,  beeauae  you  were  charged  with  eight  count* 

eaomal  aUw  uf  children  and  the  tree*)  mmmnm.  ye> 

troop  *w""y>TT  rallied  around  you  100  percent,  did; 

believe  a  word  uf  it, 

"CARLB":  That  i  true 

SAWYER:    And  they  were  convinced  yea  were  bel 

railroaded. 

•CARLB*:  Ye*. 

SAWYER:  Until  you  pleaded  guuty. 

■CARLB":  Yea. 

SAWYER:     ,'twtcr-ovrr7  Carl  waa  eenueoed  u   f 

yean'  pro  of  job  and  he  moved  out  of  Rhode  lalaod. 

tried  to  Ray  *way  from  boy*  and  tried  therapy,  bu 

few  yean  Uter  he  was  back,  applying  to  bo  a  Boy  So 


247 


leader  u>  Restoc.  Virginia. 

rintmuwingj  You  have  left  *  trail  of  tu*p*eted  and 
admitted  child  abut*.  You  cave  been  ccnvicjao  of  enild 
ahuse.  And  you  applied  to  a  Boy  Scout  troop. 
"CARL  B"  Yea.  I  All  out  the  application  in  Ration.  I 
ruiad  rt  :n  ebaoiutaly  honeauy.  1  lifted  Rhode  ft  lend.  I 
listed  Connecticut  In  fact.  1  might  have  even  listed  De- 
laware. 

SAWYER:  You  wan  pretty  convinced  that  they'd  catch 
up  with  you  at  the  outset. 

"CARL  B"  Yea.  And  when  it  didn't  happen.  I  figured 
just  the  raverae,  is  that  they  had  looked  and  said.  "He 
want  through  therapy,  in  not  a  prenlem.  it's  not  going 
j>  happen  again." 

SAWYER:  You're  iying  u  yourt*lf.  you're  doing  ail 
aorta  of  things,  but  really,  you  anew. 
"CARL  B"  Try  to  undareund.  The  allure  of  the  scout- 
ing experience,  of  doing  ail  of  the  potitiva  things  that  I 
had  done  in  the  part  for  young  people,  was  awfully,  aw. 
fully  pewarfui.  I  knew  that  I  had  this  touch  of  being 
sbU  to  mount*  people  and  get  them  to  help  than-  can.- 
dren,  and  get  involved  with  the  troop,  and  have  the 
young  men  grow  and  mature. 

SAWYER:  Didn't  you  remember  wnat  you  did  to  those 
people  in  Rhode  island? 

"CARL  8":  I —  you're  got  to  remember  that  I  did  not 
think  of  that.  1  couldn't.  If  I  started  to  think  of  that,  it's 
psmfui.  it  hurts  made,  it  eonffrms  that  I'm  terrible. 
You  scuff  the  feelings  away,  you  rationalise  them  awry 
and  lay,  "It's  not  going  to  happen  again." 
SAWYER:  ivctexutr)  But  it  did  happen  again.  In 
'.984.  Carl  waa  convicted  on  five  counts  of  sexually 
abusing  boys  in  his  Reaton  scout  troop,  and  ha  began 
serving  his  prison  term. 

The  Boy  Scouts'  eonfldantial  files  show  Carl  la  not 
■ions.  Other  convicted  child  molesters  have  managed  to 
become  scout  leaden.  Erie  Patrick  Avant  lap?/  eon. 
vtctad  of  actual  abuse  in  1979.  ha  became  a  afloutmaatar 
ic  19M.  Richard  fl****1,  a  convictwfl  fnr  aenial  abuse  m 
1964,  a  scoutmaster  m  1981;  m  1983.  toe  troop  kicked 
him  out  tor  malaatmg  bny*.  hut  the  Roy  Scouts  at  abin 
ica  never  turned  him  in  to  the  polios.  He  was  finally  ar- 
rested in  1M1  for  molesting  his  feetar  ehud.  tv~,f>" 
Birney  (ipfl:  eocrrictad  in  1976  of  sexually  abusing  a  15- 
yoer-old  Explorer  Scout  in  Maaaacaueecta;  by  19s*  he 
was  with  another  troop  in  Pennsylvania,  and  two  yean 
later,  another  eoavietiea.  Themae  Heaksr  of  Ulinoia- 
charged  with  abuamg  scouts  in  his  troop  in  1961,  but  ha 
didn't  go  into  the  file  until  1970  and.  16  yean  laser,  he 
triad  again  to  become  a  scout  leader  and  a  routine  check 
failed  to  turn  up  his  name  and  he  got  baeat  in.  Hacker 
waa  finally  arrested  m  1988  and.  by  that  time,  poiios 
raeveluded  be  had  ahiitea  aute  than  100  shidroa. 

/en  uiwamV  Expert*  tell  us  child  moi attars  often 
rationalise  their  heihaTinr  eonvinemg  themae  Wee  that 
the  children  are  parity  responsibla  for  what's  happen- 
ing. What  is  man  ■■——■»'  is  thst  sttorney*  for  toe  Boy 
Scouts  hava  used  the  same  argument  when  victims  de- 
cide to  sue.  and  una  1M1  lite  Buy  demits  here  been 


sued  over  60  times,  with  the  crginnennn  agreamg  to 
pay  out  more  than  815  million  in  damages  to  vutime  of 
sexual  abuae. 

{inurumvinsJ  In   the   court  ease*  whan  the  Boy 
Scouts  of  America  hava  been  brought  in  as  defendants, 
sttorney*  hev*  blamed  boys  for  keeping  their  abuae  by 
scout  leaden  secret,  in  one  ease  ssyma  a  boy  should  be 
held  partly  responsible  for  not  reporting  the  abuse 
sooner,  in  another  ease  aaking  a  hoy  on  whether  ha  en- 
joyed oral  sex  with  an  adult.  Why  were  the  boys  treated 
this  way  by  your  own  attorney*? 
Mr.  LEWIS:    I've  heard  that  language  from  plaintiff*' 
attorney*,  yea. 
SAWYER    la  it  not  true? 
Mr.  LEWIS:    1  don't—  I  can't  **y  that  that's  true  or 

not.    

SAWYER:  Aaking  a  bov  if  he  enjoyed  oral  aax  with  an 
adair? 

Mr.  LEWIS:  I  certainly  hava  not  seen  any  of  that. 
SAWYER:    Would  it  surprise  you  to  know  that  your 
own  attorneys  did  it? 

Mr.  LEWIS:  I  can't  (peak  to  what  has  been  aaid  In  the 
courtroom.  Thet'e  not  my  ana  of  expertise. 
SAWYER:  Would  it  surprise  you? 
Mr.  LEWIS:    I  guest  my  feeling  la  yea,  ir  would  be  a 
surprise. 

SAWYER:  Ivoict-ovtrl  In  1988  the  Rny  rVouu  of  Aaaer. 
iea  Initiated  three  policy  change*.  Their  Soy  Seou 
Handbook  now  eames  with  a  nrw  pamphlet,  addressed 
to  parent*,  that  discusses  the  problem  of  sexual  abuae. 
They  elao  produced  twr»  videos  for  Bey  Seeute  end  Cub 
Scouts.  The  boy*  do  beer  about  the  danger*  of  aexual 
—  tbuae.  but  eanut  (aeiiaee  are  peyvr_d«pj«adas_shuaefe. 
ACTOR:    [mA  Tim*  io  fiSV  I  know  the  •eon.  At 
Uaat.  I  thought  I  did.  than  something  weird  hap- 
pened to  me. 
SAWYER:    .'»«»o»-i  Alao  in  1988  the  Boy  Beauts 
altered  their  application  form.  It  now  inchkdee  the  ques- 
tion, "Have  you  ever  been  charged  with  ehfld  eeejee*  or 
abuser  The  file*  clearly  demonstrate  aa  obv-ou*  fact: 

.-^itiao/oiaeuigy  Isth'ere  a  eheck  on  that  statement? 
/Bar.  LEWIS:    Agaiaw  it'a  difficult  to  cheek  the*.  Rules 

vary  from  state  to  state.  There  are  actually  tome  place* 
\  when  it  is  illegal  to  get  en  iaveetigatian  en  a  person  » 

criminal  background. 
~~8AWTERj  But  why  dent  you  require  it,  when  you  cau 

require  K?  _ 

air.  LEWIS:   1  dan't  know  that  I  can  aay  why  a  group 

daea  or  doea  not.  ~ 

WYEB-  In  ether  wvda,  the  national  orgsniiaiii-n  of 

Boy  Scoot*  of  America  does  not  preee  ha  locals  to  have 

■aadaterr  hei  ■gnwnni  check*?  It  allow*  Uw  losala  to 

make  thoee  doosxmt? 

Mr.  LEWIS:  It  cent  be  required  eeroaa  the  board. 

SAWYER:    /iwise-oner/  The  Boy  Scouta  of  America  it 

alao  trying  to  train  tta  troop  leaden  wnh  *nn>her  video 

that  lay*  down  tpecrfie  guideline*,  what  behavior  i*  in- 

appropriate  and  how  to  recognue  potential  arrntet*. 


A* 


248 


2nd  ACTOR:  [Boy  Scout  irmninf  iidoo)  Additions) 
information  about  child  moitnin  n  included  in  your 
program  pscssts. 
SAWYER.-  ;  poiee-ovrry  But  for  ill  thtir  educational  ef- 
forts, the  national  headquarter*  has  cstahliahori  no 
tystem  of  rnmrmf  (ura  troop  leader*  actually  fo 
through  training.  Even  though  by  1988  the  Boy  Sooute 
had  an  addition  to  their  Handbook,  educational  video* 
for  the  boys,  guideline*  for  volunteer*  and  employ eee, 
and  a  new  application,  the  confidential  file*  enow  that 
pedophile*  here  roll  managed  to  become  aeout  lenders. 
Richard  9ung*r.  suspended  from  scouung  in  the  early 
70a,  allowed  beck  is  on  probation—  not  until  1980  was 
Stinger  arretted  and  eonnctad  of  actually  abusing 
scouts  in  his  charge.  James  Burton  and  Darid  Reed 
[ipf],  convicted  of  child  mo testation  is  California  they 
got  around  "the  rule'  requlrini  two  aau.t  iaau*ia  at  ail 
~eenvitie*  by  forming  their  own  aoovt  troop.  The  eon* 
fldenual  ffle*  ahow  that,  over  a  10*  month  period  in 
1988,  they  molested  mere  than  30  chi.dren.  And  Rodney 
'  Almost  /«p?7.  convicted  last  year  of  four  counts  of  child 
sexual  ibu—  just  monthi  before  his  arrest,  be  we* 
giving  miau  siaas  about  his  camp  program. 

RODNEY  ALMONT:     I  think,  for  the  most  pan, 
they're  left  with  a  \rr.  M  msmnrwe    We  hope  that 
they  re  good  memoriae. 
BAWYF.R-  [vrmrvoiiir)      Despite      the      problems 

Ki-rH.-yW^  by  the  confidential  files,  .hi  Boy  Scouts 
have  been  reluctant  rvm  to  admit  that  documents  exist. 
DON  WOLF  (iptf.  We  were  aware  of  the  fact  that  Boy 
Scouts  had  internally  their  own  list.  Blacklist,  if  yon 
will,  of  troubled  individuals  who  hsd  volunteered  for 
Bey  Secrets  eervvee. 

SAWYER  /votes-over/  Dos  Wolf  of  Big  Brothers/Big 
Sisters  waa  convinced  the  extensive  Bey  9eeut  files 
could  help  his  organisation  fight  the  problem  of  child 


Mr.  WOLF:  And  we  wanted  to  have  access  to  that  list, 
and  aceiuerl  them  that  w*  would  likewise  keep  a  lis* 
and  share  that  information  with  them.  They  said.  "We 
don't  have  the*  lis*  the*  you  think  w*  have." 
SAWYER:  They  were  lying. 

Mr.  WOLF:  Wall,  they  certainly  wouldst  admit  that 
they  had  a  list,  and  ere  bellevad  them  to  have  *  list.  re*. 
SAWTEH.  [voicwovtr)  By  1*79.  Si*  BrvUiexwBla 
Sistsn  had  already  eexnowl edged  their  orgmlistinn 
was  a  targvi  fur  all  utters.  Without,  the  Boy  Scouts'  hah) 
they  aendiad  their  own  esse*  and  ended  up  making  than* 
apuucaUun  process*  use  of  the  toughest  is  the  nation  It 
include*  police  checks,  s  training  program,  and  a  probe- 
uoo  ptn-kel  WoU*  aay*  tha  Boy  Scouts'  approach  didst 

work. 

Mr.  WOLF:  They  tried  to  bide  it,  and  that  waa  a  bigger 

part  of  the  problem.  They  didn't  recognise  that  It  was  a 

pan  of  the  problem,  and  they  didn^jeek  to  become  a 

part  of  the  solution. 

8AWTER;  Your  erttic*  aay,  to  put  it  bluntly,  that  you 

war*  drtsjad  ricking  and  ten  am  in  g  into  dealing  with 

too  caHef  aoue*  problem,  and  that  what  you  wanted  to 


do,  ustii  you  were  forced  to  do  it.  was  just  huah  it  up. 
Mr.  LEWIS:  Thsre  are  people  that  want  a  silver  bullet 
answer  to  everythmg,  snd  ware  not  going  to  pleass 
people  who  expect  an  absolute  silver  bullet  solution  to 
this  problem, 

SAWYER  Ivoiet-ovtr]  The  confidential  fuss  show  the 
Boy  Scouts'  answer  to  the  problem  often  came  down  to 
public  relations  damage  control  On*  scoutmaster  was 
secretly  put  on  probation  en  the  «-■-»■•"♦-•"  that  h*  not 
touch  boy*'  genitals  r.-abtoluuly  NO  TOUCHJNO  of 
any  port  of  th*  body....  7.  Parents  war*  talked  out  of 
pressing  charge*  .against  one  accused  scout  lssdsr 
rosaed  sAsm  not  to  notify  (A*  poiien...7.  And  in  the  ease 
of  another  accused  mas.  a  national  hsailiiiiaima  official 
wrote.  "I  hop*  the  new*  madia  mimtimi  ite  silanat 
relating  to  his  mvolvement  with  Scouting." 

Day  One's  review  of  hundred*  of  Res'  Remit  file* 
ahow*  an  averag*  of  99  reports  of  child  abuse  in  th s  or. 
gasusation  every  year. 

finsrrtjieuiuigj  Isn't  that  s  problem? 
Mr.  LEWIS:    It's  vary  imrmrtant  to  ue  that  one  caae  is 
one  too  many.  Ninety-nine  out  of  600.  TOO,  800  local 
council*.  I  dpn't  thine  that  yoo  can  aay  that's  ajiiiihlssn 
3AWTKR:  You  can  t  aay  that's  a  probWmT 
Mr.  LEWIS'  Again,  on*  ease  ie  one  toe  tossy. 
SAWYER.  Well,  than.  youV*  got  almost  a  hundred,  en 
sverea**.  a  year.  That's  a  100  tirnee  was*  s  tveblaa*. 

Mr.  LEWIS:  And  you  work  forward  ilaiaairslin  and  ea- 

hanrtng  pregraass  as  you  go. 

SAWYER:   Th*  mnfUiantial  Bias  shew  th*  Bay  Scout* 

'    ere  eweadee  late  in  reacting  to  the  pechlew.  and  even 

*"   today  the  Boy  Scout*  do  not  admit  they  are  a  primary 

'  targe*  ef  comers,  la  fact,  they  call  their  neesissHsii  • 

leader  in  sax  abuse  prevention  Th*  abuser*  thams*lve* 
^   paint  a  very  different  picture 
—       (inurvmjuAf]  If  you  war*  back  out  there  today  sad 

you  weren't  getting  help,  yeu  think  you  esoid  find  •  B*> 

9ssakrwaa>   taT\K*a0/ 

•CARLBT   Oh,  I—  it's—  Tm  sure  that  the)  pceenuci  u 

there,  surety.  Sonstoody  is—  somebody  is  needy  anongti 

there  *  eoaaebody  that  waste  e  good  Wader.  Yea.  that'*  i 

rtrwsftrTHty.  of  course  it  ia. 

SAWYER.  Aud  User*  are  other  Carls  out  there. 

"CABT.B*:  Yes,  unfortunauly,  there  are. 
SAWYER.  Ae  a  matter  ef  fact,  is  tha  past  month  at  leas 
Or*  mor*  erect  leader*  in  Ova  differae*  state*  war 
Bcsrasaaswi  tor  sexually  abusing  the  children  in  their  can 
A*  for  th*  Roy  Scouts,  thay  told  us  Just  today  they  hare  a 
arm  child  proescaoB  programs  in  th*  i 
ANNOUNCER:  Stfll  to  come  on  Day  < 

RICE  I  rffflrT    More  and  more  pawns* east  afford  t 

bin  that  lawyer  that  cost*  110.000. 160,000. 1 100,000 
ANNOUNCES:  Can  you  get  your  day  to  coon  with  s 
or«rwn*ia»»d,  overworked  ecurt-appommd  attorney? 

Juag»  CALVIN  JOHNSON:    Justice  is  not  equal 

had  to  this  room  by  ail.  no,  it's  not. 
ANNOUNCES:  And— 

[horn*  aideo  of  tornado] 
WOMAN:  Tim*  v>  go  ins  ids 


o 


80-609    (256) 


BOSTON  PUBLIC  LIBRARY 


3  9999  05983  031  3 


ISBN  0-16-046185-5 


9000 


0 


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9  780' 


60"461 


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